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VOID  EXECUTION,  JUDICIAL 


AND 


PROBATE  SALES. 

AND  THE  LEGAL  AND  EQUITABLE 

RIGHTS  OF  PUHCHASERS  THEREAT, 

AND    THE   CONSTITUTIONALITY    OF 

SPECIAL    LEGISLATION 


VALIDATING   VOID    SALES,  AND    AUTHORIZING    INVOLUN 

TARY  SALES  IN  THE  ABSENCE  OF  JUDI- 

ClAL    PROCEEDINGS. 


THIRD  EDITION. 
REVISED,  ENLARGED  AND  BROUGHT  DOWN  TO  DATE. 


BY  A.   0.   FREEMAN, 

Avthor    of    Treatises   on  '■'Judgments,'''    "■Executions,'''   '■•■Cotenancy   a7id 

Partition,"  Etc. 


ST.  LOUIS,  MO. : 

CENTRAL  LAW  JOURNAL  COMPANY, 

LAW   PUBLISHERS  AND  PUBLI8HKKS  OF  THB 

CENTRAL  LAW  JOURNAL. 

1890. 


Entered  according  to  Act  of  Congress,  in  the  year  1877,  by 

A.   C.  FREEMAN, 
In  the  office  of  the  Librarian  of  Congress  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  1886,  by 

A.  C.  FREEMAN, 
In  the  office  of  the  Librarian  of  Congiess  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  1890,  by 

A.  C.  FREEMAN, 
In  the  office  of  the  Librarian  of  Congress  at  Washington. 


r 


St.  Louis,  Mo..  Pnnted  by  Central  Law  Journal  Company. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

PAOE. 

lotroductory       ........  1 

CHAPTER   n. 

Sales  void  because  the  court  had  no  authority  to  enter  the  judg- 
ment, or  order  of  sale        ......  5 

t 

CHAPTER  in. 

Sales  void  because  of  errors  or  omissions  subsequent  to  the  judg- 
ment or  order  of  sale        ......  44 

CHAPTER   IV. 
The  confirmation  and  deed      ......  70 

CHAPTER    V. 

The  legal  and  equitable  rights  of  purchasers  at  void  sales  .  81 

CHAPTER   VI. 

The  constitutionality  of  curative  statutes      .  .  .  .116 

CHAPTER  VII. 

Constitutionality  of  special  statutes  authorizing  involuntary  sales        142 


TABLE  OF  CASES  CITED. 


[The  refereuces  are  to  sections.] 


Abbott  V.  Coburn,  4. 
Abbott  V.  Curran,  20. 
Ackley  v.  Dygert.  12,  IT. 
Adams  v.  Jeffries,  15. 
Adams  V.  Morrison,  31. 
Adams  v.  Xorrls,  4. 
Adams  V.  Palmer.  61. 
Adams  v.  Smith,  49. 
Alabama  Conference  v.  Price.  11. 
Ala.  L.  I.  &  T.  Co.  V.  Boykin,  60. 
Aldrich  v.  Wilcox,  34. 
Alexander  v.  Miller's  Ex.,  25. 
Alexander's  Heirs  v.  Maverick,  8. 
Allen  V.  Kellam,  10. 
Allen  V.  Shepard,  20. 
Ameth  V.  Bailey,  11. 
Anderson  v.  Foulks,  48. 
Anderson  v.  Goff,  3. 
Anderson  v.  Green,  33. 
Anderson  v.  Turner,  9. 
Andrews  v.  Avery,  4. 
Andrews  v.  Roberts,  1. 
Andrews  v.  Kussell,  57. 
Andrews  v.  Scotton,  1. 
Angle  V.  Spear,  54. 
Armstrong;  v.  McCoy,  47. 
Arnold  v.  Cord,  49. 
Arrowsmith  v.  Ilarmoning,  20,  22. 
As  hurst  V.  Ashurst,  .S2. 
Atkins  V.  Kinnan,  11,  20,  47. 

B. 

Babbitt  v.  Doe,  16. 
Babcock  v.  Cobb,  22. 
Bagley  v.  Ward,  24. 
Bailey  v.  Brown,  9. 
Bailey  v.  Kobinson,  33. 
Bank  v.  lieatty,  29. 
Bank  v.  Dudley,  .^0. 
Bank  v.  Trapier,  31. 
Karbee  v.  Perkins,  20. 
Barber  v.  Morris,  2. 
Barelll  v  Ganche,  63. 
Barker,  Ex  parte,  2,  10. 
B  irnes  v.  Fenton,  41. 
Barnes  v.  Morris,  46. 
I'.arnett  v.  Bull,  32. 
Barrett  v.  Churchill,  48. 


Barrett  v.  Garney,  4. 

Barron  v.  Mayor  of  Baltimore,  6i. 

Barron  v.  Mullin,  48. 

Bartee  v.  Tomkins,  48. 

Bartlett  v.  Judd,  55. 

Bartlett  v.  Sutherland,  9. 

Barton  v.  Hunter,  40. 

Bassett  V.  Lockwood,  48. 

Beach  v.  Walker,  60. 

Beal  V.  Harmon,  11. 

Beard  v.  Rowan,  9. 

Beauregai-d  v.  New  Orleans,  15. 

Beckett  V.  Seiover,  4,  5,  20. 

Beel  V.  Green,  27. 

Beidler  v.  Friedell,  21. 

Belcher  v.  Chambers,  3. 

Bell's  Appeal,  9. 

Bennett,  Ex  parte,  2 

Benson  v.  Cilley,  8,  Ih. 

Bentley  v.  Long,  52. 

Bentz's  Est.,  13. 

Bethel  V.  Bethel,  44. 

Bigelow  V.  Bigelow,  4. 

Bigelow  V.  Booth,  24. 

Bishop  V.  O'Connor,  51,  53. 

Ulthson  V.  Budd,  47. 

niackman  v.  Bauman,  22. 

iWair,  Ex  parte,  9. 

Blair  v.  Cainpton  .  30. 

Bland  v.  Bower,  53. 

Bland  v.  Muncaster,  9,  28,  33. 

Blanks  v.  Rector,  24. 

Bledsoe  v.  Willingham,  26. 

Blodgett  v.  Hltt,  16,  28,  63. 

Blodgett  V.  Ilubart,  53. 

I'.loom  v.  Burdlck,  11,  12,  20,  22. 

Blood  V.  Hayman,  41. 

Bobb  V.  Barnum,  47. 

Boggs  V.  Hargrave,  49. 

Boland's  Estate,  11. 

Bolivar  v.  Zeiglar,  48. 

Itompart  v.  Lucas,  11. 

IJonnell  v.  Holt,  17. 

Boon  V.  Bowers,  68. 

Hooth  v.  Booth,  6(1. 

Horeu  V.  McGeehe,  23. 

liorlng  V.  Lemmon,  45. 

Boro  V.  Harris,  ^H. 

Bouldln  V.  Kwart.  39. 

Bowen  v.  Bond,  13,  U. 

Bo  wen  V.  .Jones,  29. 

Biiyce  V.  Sinclair,  60. 


(1) 


VI 


■  TABLE   OF    CASES    CITED. 


Boyd  V.  Blankman,  1,  20,  33. 
Boykin  v.  C'ook,  -is. 
Boyle  V.  Maroney,  21. 
Braddee  v.  Brownfiold,  57. 
Braley  v.  Siinonds,  36. 
Branbaiu  v.  San  Jose,  49. 
Bray  v.  ^larshall,  41. 
Bree  v.  Bree,  12,  IS. 
Brenhaiu  v.  Davidson,  66. 
Brenham  v.  Story,  72, 
Brevard  v.  Jones,  25. 
Brevoort  v.  Grace,  72. 
Brickliouse  v.  Sutton,  60. 
Bright  V.  Boyd,  53,  55. 
Briggs  V.  Tye,  44. 
Briniou  v.  Seevers,  61. 
Brobst  V.  Brock,  52. 
Brock  V.  Frank,  4. 
Bronner  v.  Greenlee,  4H. 
Brooks  V.  Rooney,  2S,  47. 
Brown  v.  Brown,  20,  52. 
Brown  V.  Armistead,  "J. 
Brown  v.  Bond,  20. 
Brown  v.  Butters,  27. 
Brown  V.  Christie,  30. 
Brown  v.  Gilinor,  44. 
Brown  v.  llobson,  9. 
Brown  v.  Lane,  49. 
Brown  v.  Uedwyne,  8. 
Broughton  v.  Bradley,  4. 
Bryan  v.  Bander,  11. 
Buchanan  v.  Tracy,  47. 
Bullard  v.  Hiukley,  36. 
Bull,  Matter  of,  68. 
Bunce  v.  Bunce,  18  22. 
Burbank  v.  Simmes,  9. 
Burch  V.  Hantz,  33. 
Burdett  v.  Silsbee,  4. 
Burns  v.  Hamilton,  48,  49. 
Burns  v.  Leabetter,  4~<,  49. 
Burton  v.  Lies,  49. 
Burton  v.  t-piers,  28,  60. 
Bybee  v.  Ashby,  29. 
Byers  v.  Fowler,  21. 
Byrd  V-  Turpin,48. 

C. 

Calderv.  Bull,  .'.6,  62. 
Caldwell  v.  I'.lake,  41. 
Camden  v.  Plain,  14. 
Campbell  v.  Brown,  16.  ^8. 
Campbell  v.  Knights,  22. 
Campbell  v.  P.  S.  I.  Works,  38. 
Casey  v.  Gregory,  21. 
Cashion  v.  Farria,  48. 
Cathcart  v.  Sugenheimer,  53, 
Chambers  v.  Jones,  51. 
Chandler  v.  Moulton,  33. 
Chase  v.  Ross,  10. 
Childes  v.  Haipman,  2. 
Childs  V.  McChesney,  30. 
City  Bank  v.  Walden,  44. 
Clark  V.  Sawyer,  47. 
Clark  V.  Thompson,  16,  17. 
Clark  V.  Van  Surlay,  66. 6S. 
Clingman  v.  Hophie,  24. 
Carpenter  V.  Pennsylvania,  62. 
Carpenter  v.  Sherfy,  46. 
Carroll  v.  Olmstead,  66. 
Carter  v.  Waugh.  20. 
Castleman  v.  Relfe,  43. 
Chambers  v.  Cochran,  40. 
Chambers  v.  Jones,  17,  2h,  53. 
Chandler  v.  Northrop,  5S. 
Chapman  v.  Brookl\  n,  4'». 
Chapman  v.  Harwood,  46, 
Chase  v.  Ross,  2, 10. 
Chesnut  v,  Shane,  62. 


Chesnut  v.  Shane's  Lessee,  60. 

City  of  Portland  v.  City  of  Bangor,  62, 

Cochran  v.  Van  Surlay,  68,  72. 

Cockey  v.  Cole,  44. 

Cofer  V.  Miller,  21. 

Coffin  V.  Cottle,  6. 

Cogan  V,  Foley,  48. 

Cogan  V.  Frisby,  48. 

Cohea  v.  State,  22, 

Colbert  v,  Moore,  48, 

Colie  v.  Jamison,  55. 

Collars  v.  McLeod,  29. 

Collier's  Admr.  v.  Windham,  24, 

Collins  v.  Montgomery,  31. 

Comstock  v,  Crawford,  16, 

Conklin  V.  Edgerton,9. 

Conyers  v.  Meryeles,  54. 

Conover  v,  Musgrove,  44, 

Cook  V,  Travis,  38, 

Cook  V,  Toumbs,  49. 

Cookerly  v,  Duncan,  60. 

Cooley  V.  Wilson,  21,  28. 

Coon  V.  Fry,  11,  12. 

Cooper  V.  Homer,  41. 

Cooper  V.  Reynolds,  5. 

Cooper  V.  Sunderland,  22. 

Copehart  v.  Downey,  48. 

Coppinger  v.  Rice,  4. 

Corbitt  V.  Clenny,  41. 

Core  V.  Strichler,  41. 

Cornwall's  Estate,  11. 

Corwin  v.  Merritt,  11,  16, 19. 

Corwin  v.  Shoup,  50. 

Corwith  v.  State  Bank,  25. 

Cottingham  v.  Springer,  46. 

Coy  V.  Downie,  16. 

Crain  v.  Rothermel,  40. 

Crane  v.  Guthrie,  36, 

Cravens  v,  Moore,  2, 

Crenshaw  v,  Julian,  35. 

Crippen  v.  Chappel,  53, 

Cromwell  v.  Hall,  20, 

Crosby  v,  Dowd,  20, 

Crouch  V.  Eveleth,  29. 

Crowell  V.  Meconkey,  50. 

Crusoe  v.  Butler,  9. 

Cunningham  v.  Burk,  24. 

Curley's  Succession,  27,  28. 

Currie  v.  Stewart,  22. 

Curtis  V.  Norton,  43. 

Cutts  V.  Haskins,  4. 

D. 

Dachmont  v.  Vaughan,  41. 

Dagger  v.  Taylor,  42. 

Dakin  v.  Demudng,  3. 

Dakin  v   Hudson.  16. 

Dale  V.  Medcalf,  59. 

Davenpoit  v.  Sovil,  54 

Davenport  v.  Young,  Git. 

Davidson  v  Davidsou,  33,  53. 

Davidson  v.  Koehler,  66. 

Davie  v.  McDaniel,  8. 

Davis  V.  Brandon,  46. 

Davis  V.  Gaines,  20,  53. 

Davis  V.  Helbig,  66. 

Davis  V.  Hoover,  9. 

Davis  V.  Kline,  4". 

Davis  V.  Menasha,  57. 

Davis  V.  Reaves,  53. 

Davis  V.  State  Bank,  60. 

Davison  v.  Johonuoc,  66,  69. 

Dawson  v.  Litsey,  34. 

Dean  V.  Morri.4,  48. 

De  Bavdelaben  v.  Stoudenmire,  10, 13, 

Deford  v.  Mercer,  50. 

De  Forrest  v.  Farley,  21. 

De  La  Montagnie  v.  Union  Ins.  Co.,  9- 

Delaney's  Estate,  9. 


TABLE    OF    CASES    CITED. 


Vll 


Delaplaine  v.  Lawrence,  39. 

Dennis  v.  Winter,  44. 

Denny  v.  Mattoon,  57,  58. 

Dentzel  v.  Waldie,  60. 

De  Riemer  v.  De  Cantillon,  55. 

De  Sepulveda  v.  Baugh,  20,  47. 

Dickerson  v.  Talbot,  43. 

Dickey  v.  Beatty,  55. 

Dickison  v.  Dicklson,  17. 

Dodd  V.  Xeilson,  48. 

Doe  V.  Anderson,  17. 

Doe  V.  Bowen,  S,  16. 

Doe  V.  Douglass,  67. 

Doe  V.  Hardy,  45. 

Doe  V.  Harvey,  S. 

Doe  V.  Henderson,  20. 

Doe  V.  Ingersoll,  23. 

Doe  V.  McLoskey,  15. 

Dolargue  v.  Cress,  50. 

Doolittle  V.  Holton,  8. 

Dorsey  v.  Gilbert,  66. 

Douglierty  v.  Llnthicum,  36. 

Douglass  V.  Bennett,  53. 

Douglass  V.  Haberstro,  25. 

Douner  v.  Smith,  4. 

Downing  v.  Lyford,  33. 

Downing  v.  Kugar,  10. 

Draper  v.  Bryson,  28. 

Drefall  v.  Tuttle,  23. 

Dresbach  v.  Stein,  1,48. 

Driggs  V.  Abbott,  4. 

Drinkwater  v.  Drinkwater,  38. 

Dubois  V.  McLean,  69. 

Du  Chastellux  v.  Fairchild,  57. 

Dufour  V.  Camfranc,  47,  52. 

Dulany  v.  Tilghman,  60, 

Dunbar  v.  Creditors,  53. 

Duncan  v.  Gainey,  53. 

Duncan  v.  Stewart,  4. 

Dunn  V.  Frazier,  48,  49. 

Dunning  V.  O.  X.  B.,9. 

Durham's  Estate,  9. 

Duval's  Heirs  v.  P.  &  M.  Bank,  15. 

Dwight  v.  Blackmar,  33. 

E> 

Eads  V.  Stephens,  31. 
Eberstein  v.  Oswalt,  .36. 
Edmunds  v.  Crenshaw,  33. 
Edney  v.  Edney,  48. 
Edwards  v.  Haibert,  21. 
Edwards  v.  Pope,  71. 
Elam  V.  McDonald,  54. 
Ellet  V.  Passon,32. 
Elliott  V.  Knott,  26. 
Elliott's  Lessee  v.  Knott,  24. 
Ellis  v.  Ellis,  53. 
Ellsworth  V.  Hall,  11. 
Emory  v.  Vroman,  44. 
En  .'land  v.  Clark,  48. 
Estep  V.  Hutchinson,  66. 
Esthell  V.  N'ichols,  11. 
Evans  v.  Chew,  9. 
Evans  v.  Kobberson,  28. 
Evans  v.  Snyder,  9,  53. 
Ewing  V.  Higby,  15,  44. 

F. 

Fambro  v.  Gantt,  32. 
Farmers'  Bank  v.  .Martin,  48. 
Farmers'  Bank  v.  .Merchaiu,  45. 
Farnum  v.  Perry.  33. 
Farrar  v.  Dean,  11. 
Farrlngton  v.  King,  20. 
Fell  V.  Young,  8. 
Ferguson  v.  Williams,  62. 
Field's  Heirs  v.  Goldsby,  15. 


Field  v.  Schiefflelin,  9. 

Finch  V.  Edmonson,  11. 

Finley  v.  Grant,  23. 

Fisher  v.  Bassett,  4. 

Fiske  V.  Kellogg,  16. 

Fisk  V.  Norvel,  4.  7. 

Fitch  v.  .Miller,  12, 13, 14. 

Fitch  V.  Witbeck,  10. 

Fitzpatrick  v.  Peabody,  21. 

Flanders  v.  Flanders,  33. 

Fleming  v.  Ball,  20. 

Fleming  v.  Powell,  45. 

Fletcher  v.  Peck,  62. 

Flinn  v.  Chase,  7. 

Florentine  v.  Barton,  71. 

Foley  v.  Kane,  30. 

Forbes  v.   Halsey,  11. 

Ford  V.  Walsworth,  11.  12. 

Forman  v.  Hunt,  1. 

Forster  v.  Forster,  60. 

Foster  V.  Birch,  22. 

Foster  V.  Essex  Bank,  62. 
I  Foster  V.  Mabe,  31. 
I  Fowler  V.  Poor,  21. 
!  Frazier  v.  Steenrod,  18. 

Frederick  v.  Pacquetto,  10. 

Freeman  v.  Aldersou,  3. 

French  v.  Currier,  9. 

French  v.  Edwards,  23. 

French  v.  Hoyt.  16. 

Frink  v.  Roe,  26. 

Froneberger  v.  Lewis,  33. 

Frost  V.  Atwood,  53. 

Frost  V.  Yonkers,5,  23. 

Fuller  V.  Little,  33. 

Fullerton  v.  McArthur,  71. 

Furbish  v.  Greene,  39. 

G. 

Gage  V.  Schroder,  21. 

Gager  v.  Heurj%  15. 

Gaines  v.  De  La  Croix,  4,  32. 

Gaines  v.  Kennedy,  53. 

Gaines  v.  Fenton,  9. 

Gaines  v.  Xew  Orleans,  44. 

Galpin  v.  Page,  5. 

Gannett  v.  Leonard,  67,  70. 

Gardner  v.  Maroney,  20. 

Gay  V.  :\rinot,  6. 

Geddings  v.  Steele,  20. 

Gelstrop  v.  Moore,  9. 

George  v.  Watson,  15. 

Gernon  v.  Bestick,  28. 

Gerrard  v.  Johnson,  8. 

Gibbs  v.  Shaw,  8, 16. 

Gibson  v.  Lyon,  34. 

Gibson  v.  Roll,  7,  11, 18,  19. 

Gilbert  v.  Coolej',  52. 

Gilbert  v.  Hoffman,  54. 

Gilchrist  v.  Shackleford,  11. 

Giles  V.  Palmer,  35. 

Giles  V.  Pratt,  41. 

Glrard  L.  Ins.  Co.  v.  F.  &  M.  B  mk,  1. 

Glass  v.  Greathouse,  33. 

Glenn  v.  Wootten,28. 

Glover  v.  Ru)Mn,47. 

Gerrard  v.  Thompaon,  16. 

Godbold  v.  Lambert,  21. 

Goforth  v.  Longworth,  9. 

Going  v.  Emery,  9. 

Good  v.  Norley,  16, 17. 

Goodly  V.  Crow,  i><. 

Good  body  v.  Guodbody,  21. 

Goodman  v.  Winter,  53. 

Goodrich  v.  Ptndleton,  4. 

Goodwin  V.  .Jones,  9. 

Gordon  v.  (;ainp,  •*•.>. 

Gordon  v.  Cillfoll,  26. 

Gordon  v.  Gordon,  •2C. 


VUl 


TABLE    OF    CASES    CITED. 


Gourdin  v.  Davis,  47. 

Gowan  v.  Jones,  4H. 

Graham  v.  Hawkins,  20. 

Graham  v.  Lynn,  24. 

Grant  v.  Lloyd,  58,  54. 

Grav  V.  Hawes,  2. 

Grayson  v.  Weddle,  12,  20,  43,  55. 

Green  v.  Aljraham,  (iO 

Greenman  v.  Harvey,  17. 

Green  v.  Sargeant,  33. 

Greene  v.  Holt,  33. 

Gregory  v.  McPlierson,  10, 11, 1'2. 

Gregory  v.  Taber,  11, 12, 1^. 

Gridley  v.  Phillips,  46. 

Greer's  Appeal,  lo. 

Grittln  v.  Cunningham,  58. 

GrillUh  v.  Fowler,  1. 

GrllHth  V.  Krazier,  4,  7. 

Grlgnon's  Lessee  v.  Aster,  14, 15. 

Grimes  v.  Doe,  57. 

Grimes  v.  Norris.  4. 

Griswold  v.  Bigelow,  47. 

Groff  V.  Jones,  34. 

Grogan  v.  San  Francisco,  62. 

Gross  V.  Meadors,  45. 

GuUey  V.  Prather,  9. 

Gurney's  Succession,  20. 

Guerrero  v.  Bullerino,  33. 

Gunz  V.  Heffner,  2. 

Guy  V.  Pierson,  11. 

Gwin  V.  McCanolI,  8. 

Gwinn  v.  Williams,  41. 

H. 

Halcombe  v.  Loudermilk,  49. 

Hall  V.  Chapman,  11. 

Hall  V.  Rav,  31. 

Hall  V.  Thayer,  fi. 

Halleck  v.  Guy,  1,  44. 

Halleck  v.  Moss,  16,  18. 

Hamblin  v.  Warnecke,  33,  35. 

Hamill  v.  Donnelly,  11,  22. 

Hamilton  v.  Lockbart,  16,  22. 

Hammann  v.  Mink,  47. 

Handy  v.  Xoonan,  50. 

Hanby  v.  Tucker,  31. 

Hanks  v.  Xeal,  5,  7,  28. 

Harlan's  Estate,  4. 

Harlan  v.  Harlan,  25. 

Harriman's  Heirs  v.  Janney,  41. 

Harrington  v.  O'Reilly,  24. 

Harris  v.  Corriell,  23. 

Hart  V.  Henderson,  58. 

Harris  v  Lester,  21. 

Harrison  v.  Maxwell,  47. 

Harrison  v.  McHenry,  33. 

Hartley,  In  re,  28. 

Haskins  v.  Wallit,  25,  47. 

Hastings  v.  Johnson,  34. 

Hatcher  v.  Briggs,  53. 

Hatcher  v.  Clifton,  2u. 

Hathaway  v.  Heswell,  24. 

Havens  v.  Sherman,  17,  19. 

Haws  V.  Clark,  18. 

Hawkins  v.  Hawkins,  44. 

Hawkins  V.  Miller,  49. 

Hayes  v.  N.  Y.  M.  Co.,  43. 

Haynes  v.  Meeks,  4, 11, 12, 13, 14,  53. 

Hays  V.  Jackson,  9. 

Hays  V.  McNealy,  11. 

Headen  v.  Oubre,  50. 

Hearth  v.  Wells,  20. 

Hedges  V.  Mace,  21. 

Helmer  v.  Rehm,  28. 

Helms  V.  Love,  19. 

Helms  V.  Chadhourne,  17. 

Henderson  v.  Hays,  28. 

Henderson  v.  Herrod,  43. 


Henderson  v.  Overton,  49. 

Hendrick  v.  Davis,  28. 

Herbert  v.  Herbert,  47. 

Herdman  v.  Short,  18. 

Herndon  v.  Rice,  49. 

Herrick  v.  Ammerman,  20,  28. 

Herrick  v.  Morrill,  47. 

Herrman  v.  Fontelieu,  27. 

Hejnuan  v.  Babcock,  23. 

Hibberd  v.  Smith,  25,  41. 

Hickenbotham  v.  Blackledge,  17. 

Hicks  V,  Weens,  33. 

Hickson  v.  Rucker,  48. 

High  V.  Nelms,  3S. 

Hightowei  V.  Handlin,  34. 

Hill  V.  Billingsly,  58. 

Hill  V.  Town  of  Sunderland,  57. 

Hill  V.  Wall,  20. 

Hind's  Heirs  v.  Scott,  47. 

Hinson  v.  Hinson,  28. 

Hite  V.  Taylor,  9. 

Hoard  V.  Hoard,  11. 

Hobart  v.  Upton,  28. 

Hobson  V.  Ewan,  43. 

Hoffman  v.  Anthony,  28. 

Hoffman  v.  Strohtcher,  23. 

Holman's  Heirs  v.  Bank  of  Norfolk,  67, 

68,  69. 
Holman  v.  Gill,  41,  47. 
Holmes  v.  Shafer,  48. 
Holyoke  v.  Haskins,  4. 
Hopkins  V.  Mason,  58. 
Hoftkins  v.  Helm,  24. 
Hough  v.  Doyle,  17. 
Housley  v.  Lindsay,  48. 
Howard  v.  Moure,  46. 
Howard  v.  North,  28,  30,  49,  52. 
Howe  V.  McGivern,  35. 
Howell  V.  Tyler,  33. 
Hotchkiss  V.  Cutting,  44. 
Houx  V.  County  of  Bates,  55. 
Hoyt  V.  Sprague,  66. 
Hudgens  v.  Jackson,  28,  45. 
Hudgin  T.  Hudgin,  49,  63. 
Huffman  v.  Gaines,  50. 
Hughes  V.  Watt,  28. 
Humphrey  v.  Beeson,  47. 
Hunt  V.  Loucks,  2o. 
Hunter  v.  Roach,  25. 
Hurley  v.  Barnard,  8. 
Hurst  V.  Siford,  24. 
Hutchinson  v.  Cassidy,  32. 
Hutton  V.  Williams,  1. 


Ikelheimer  v.  Chapman,  11. 
IngersoU  v.  Ingersoll,  17. 
Ingersoll  v.  Maugam,  17. 
Insurance  Co.  v.  Bangs,  3. 
Irwin  V.  Scribner,  4. 
Islay  V.  Stewart,  4S. 
Ives  V.  Ashley,  33. 


Jackson  v.  Bowen,  52. 
Jackson  v.  Crawfords,  11, 12, 14. 
Jackson  v.  Ludeling,  44. 
Jackson  v.  Robinson,  10,  11,  20. 
Jackson  v.  Summerville,  54. 
Jackson  v.  Todd,  9. 
Jackson  v.  Williams,  9. 
Jacob's  Appeal,  44. 
Jaggers  v.  Giillin,  4S. 
Jarboe  v.  Colvin,  21. 
Jarvis  v.  Russick,  29. 
Jayne  v.  Boisgerard.  53. 


Jefferson  v.  Curry,  30. 


TABLE    OF    CASES    CITED. 


IX 


Jalks  V.  Barrett,  55. 
Jenkins  v.  Youiij?,  b^. 
Jennings  v.  Jennings,  48. 
Jennings  v.  Kee,  50. 
Jennings  v.  Moses,  i. 
Jochumsen  v.  Suflolk  S.  B.,  4. 
Johns  V.  Rome,  55. 
Johnson  v.  Bemis,  30. 
Johnson  v.  Ualclwell,  49. 
Johnson  v.  Commissioners,  60. 
Johnson  v.  Cooper,  5o. 
Johnson  v.  Fritz,  50. 
Johnson  v.  Hlnes,  46. 
Johnson  v.  Johnson,  IS. 
Johnson  v.  Jones,  11. 
Johnson  v.  Robertson,  49. 
Jones  V.  Clark,  41. 
Jones  Y.  Edwards,  S. 
Jones  V.  Henry,  49. 
Jones  V.  Holingsworth,43. 
Jones  V.  K.  B.  Assn.,  ii'.). 
Jones  V.  Levi,  17. 
Jones  V.  Manly,  53. 
Jones  T.  Perry,  65. 
Jones  V.  Warnoch.  48. 
Jones  V.  Taylor,  47. 
Jones  V.  Mortimer,  53. 
Jouet  V.  Mortimer,  45. 
Journeay  v.  Gibson,  60. 
Julian  V.  Beal,  49. 

K. 

Kable  V.  Mitchell,  43. 
Kane  v.  McCown,  30. 
Kane  V.  Paul,  4. 
Karnes  v.  Harper,  23. 
Kearney  v.  Taylor,  60. 
Kempe  v.  Pintard,  50. 
Kendall  v.  Miller,  9. 
Keepfer  V.  Force,  54. 
Keith  V.  Keith,  47. 
Kennard  v.  Louisiana,  62. 
Keeler  v.  Stead,  6. 
Kennedy  v.  Clayton,  31. 
Kennedy  v.  Gaines,  17. 
Kezar  v.  Elkins,  23. 
Kibby  v.  Chitwood,  6",  69. 
Kidwell  V.  Brummagiui,  P. 
King  V.  Gunnison,  4p. 
King  V.  Kent's  Heirs,  13. 
Kingsbury  v.  Wild,  47. 
Kingston  Bank  v.  Eltinge,  49. 
Kinney  v.  Knoebel,  6i. 
Kipp  V.  Bullard,  .So. 
Kittredge  v.  Folsom,  4. 
Knott  V.  Stearns,  41. 
Koehler  v.  Ball,  44. 
Kostenbader  v.  Spotts,  4S. 

L. 

Lafferty  V.  Conn,  28. 

Lamb  v.  Shernmn,  47. 

Lambertson  v,  Merchnnts'  Bank,  39. 

Lamothe  v.  Lipjiott,  41. 

Lane  v.  Dornian,  69. 

Lane  v.  Nelson,  58,  60. 

Larco  V.  Casaneuava,  9. 

Larmeier  v.  McGinty,  50. 

Latimer  v.  R.  R.  Co.,  4. 

Laughman  v.  Thompson,  48. 

Laws  V.  Thompson,  49. 

Lee  V.  Gardner,  50. 

Leggett  V.  Hunter,  68,  72. 

Leland  v.  Wilson,  45. 

Lemon  v.  Craddock,  46. 

Levy  V.  Martin,  .53. 

Levy  V.  Riley,  53. 


Lewis  V.  Dulton,  4. 
Lewis  V.  Ow'ens,  54. 
Lewis  V.  Webb,  57. 
Liebv  V.  Ludlow.  51. 
Lillibridge  v.  Tregent,  52. 
Lincoln  v.  Alexander,  58. 
Lindsay  v.  Jatfray,  7. 
Linsley  v.  Hubbard,  71. 
Litchfield  v.  Cudworth,  33,  34. 
Little  V.  Sinnet,  2b. 
Livingston  v.  Cochran,  33. 
Loan  Association  v.  Topeka,  56. 
Lockhart  v.  John,  22. 
Lockwood  v.  Stradley,  9. 
Lockwood  V.  sturtevant,  34,  47. 
Lofland  v.  Ewing,  29. 
Logsdon  V.  Spevey,  30. 
London  v.  Robertson,  48. 
Long  V.  Burnett,  10. 
Long  v.  Wellar,  2u,48. 
Longworth  v.  Goforth,  50. 
Louisville  v.  University,  62. 
Low  V.  Purdj',  9. 
Ludlow  V.  Park,  35. 
Lynch  v.  Baxter,  1. 

M. 

Macy  v.  Raymond,  30,  46. 

Maddox  v.  Sullivan,  28. 

Mahan  v.  Reeve,  55. 

Mahoney,  Jnre,  16. 

Maina  v.  Elliott,  41. 

Maple  V.  Kussart,  50. 

Maple  V.  Nelson,  27. 

Mare  v.  Bradford,  28. 

Marr  v.  Boothby,  30. 

Marr  v.  Peay,  9. 

Marshall  v.  Greenfield,  47. 

Martin  v.  Bonsach,  47. 

Martin  v.  Wilbourne,  47. 

Martin  v.  Tarver,  48. 

Mason  v.  Ham,  3  ,  46. 

Mason  v.  Osgood,  1,  43. 

Mather  v.  Chapman,  60. 

Matheson  v.  Hf  ariu,  15. 

Matter  of  Bull,  68. 

Matter  of  Trustees  of  N.  Y.  P.  E.  Public 

School,  68. 
Maurr  v.  Parrlsh,  13, 18. 
Maxwell  v.  Goetsciiins,  58. 
Mayers  v.  Carter,  30. 
Mayor  v.  Horn,  61. 
Mays  V.  Wherry,  39. 
McAnulty  v.  McClay,  10. 
McArthur  v.  Carrie,  32. 
McBain  v.  McBalu,  43. 
McBryde  v.  Wilkinson,  55. 
McCaskey  v.  Gruff,  54. 
McCauley  v.  Harvey,  14. 
McCown  V.  Foster,  20. 
McCracken  v.  Adler,  35. 
McDade  v.  Burch,  20. 
McDaniel  v.  Correll,  58. 
McFelly,  Matter  of,  28. 
McGavock  v.  Bell,  21,  44. 
McGee  v.  Hoyt,  47. 
McGee  V.  Wallls,  52,  53. 
McGhee  v.  Ellis,  49. 
McGill  V.  Doe,  38. 
McGulre  v.  Koun.s,  47. 
McKeever  v.  Bait,  11,  12,  22. 
McKlnney  v.  Jon*  s,  22. 
McLaughlin  v.  Daniel,  52. 
McLaughlin  v.  Jiinney,  80. 
McLeod  V.  Johnson,  60. 
McManus  v.  Keith,  48. 
McNalr  v.  Hunt,  2S. 

McNeil  v.  First   Cong.   CUuich,  4, 10,  68. 
Mcpherson  v.  Cundlfi,  15. 


TABLE    OF   CASES    CITED. 


McKae  V.  Danncr,  44. 

Mebane  v.  Lay  ton,  35. 

Mebberly  v.  Johnson,  22. 

Mech.  S.  &  B.  Assn.  v.  O'Conner  48. 

Melmas  v.  Pfisler,  22. 

Menges  v.  Dentler,  60,  61. 

Menges  v.  Wertman,  GO,  (il. 

Merrill  v.  Harris,  20. 

Merrit  v.  Terry,  45. 

Merritt  v.  Home,  50. 

Messerschniidt  V.  Baker,  46. 

Michael  v.  McDurmott,  32. 

Mickel  V.  Hicks,  15. 

Miles  V.  Wheeler,  33. 

Mllford  V.  Beberidge,  21. 

Miller  V.  Babcock,  2. 

Miller  V.  Jones,  2, 10. 

Miller  V.  Kalb,  54. 

Miller  v.  Miller,  10. 

Millis  V.  Lombard,  21,  41. 

Mills  V.  Tukey,  46. 

Minnesota  Uo.  v.  St.  Paul  Co., 

Minor  v.  Selectmen,  28. 

Mitchell  V.  Bliss,  47. 

Mitchell  V.  Freedley,  50. 

Mitchell  V.  Ireland, 30. 

Moffltt  V.  Moffltt,  11,  l.S. 

Mohan  V.  Smith,  35. 

Mohr  V.  Manierre,  12, 15. 

Mohr  V.  Porter,  15. 

Mohr  V.  Tulip,  12,  50,  53 

Monaghan  v.  Small,  48. 

Monahan  v.  Vandyke,  19. 

Monarque  v.  Monarque,  48. 

Monell  V.  Dennison,  4. 

Money  V.  Turnipseed,  20. 

Moody  V.  Butler,  21,  43. 

Montgomery  v.  Johnson,  15,  20. 

Montgomery  v.  Realhafer,  24. 

Montgomery  v.  Samory,  44. 

Moody  V.  Butler,  22,  43. 

Moore  V.  Greene,  43. 

Moore  v.  Neil,  41. 

Moore  v.  Philbrick,  4. 

Moore  V.  Starks,  8,  17. 

Moore  v.  Wingate,  47. 

Moreau  v.  Branham,  55. 

Morgan  v.  Wattles,  3Z. 

Morrell  v.  Ingle,  31. 

Morris  v.  Hogle,  7, 11, 18. 

Morrow  v.  Weed,  13,  20,  28. 

Morton  V.  Welborn,  49. 

Moses  V.  McFarlane,  49. 

Mott  V.  Ackermau,  9. 

Mount  V.  Valle,  12. 

Mountour  v.  Purdy,  28. 

Muffltt  V.  Muflitt,  28. 

Muir  V.  Craig,  49. 

Mulford  V.  Beveridge,  17. 

Mulford  V.  Stalzenback,  20,  41. 

Muncie  Bank  v.  Miller,  60. 

Munn  V.  Surges,  33. 

Munson  v.  Newson,  4. 

Murphy  v.  Hill,  31. 

Murphy  v.  Teter,  33. 

Murray  v.  Hoboken  L.  &  I.  Co..  62. 

Murrell  v.  Roberts,  23. 

Muskingum  Bank  v.  Carpenter,  41. 

Musselman  v.  Eshelman,  33. 

Myer  v.  McDougal,  20,  41. 

Myers  v.  Davis,  20. 

Neal  V.  Patterson,  32. 
Neligh  V.  Keene,  27,  44. 
Nelson  v.  Brodhack,  47. 
Kelson  v.  Bronnenberg,  39. 
Nelson  V.  Carrington,  9. 
Nelson  v.  Rountree,  61,  62. 


Newcomb  v.  Smith,  U. 
Newman  v.  Samuel,  60,  61 
Nicholl  V.  Nicholl,  22. 
Nowler  V.  Coet,  4,  51. 
Norrls  V.  Clymer,  66. 
Norton  v.  Pettibone,  60. 
Nugent  V.  Glfford,  9. 

o. 

Ogden  V.  Walters,  47. 
Opinion  of  the  Judges,  65. 
Osgood  V.  Blackmore,  34. 
Osman  v.  Traphagen,  39,  44,  46. 
Oaterberg  v.  U.  F.  Co.,  48. 
O'Sullivan  v.  Overton,  3. 
Orton  V.  Noonan,  59. 
Overfleld  v.  Bullett,  9. 
Overton  v.  Johnson,  12. 
Owens  V.  Hart,  35. 
Owen  V.  Slater,  48, 

P. 

Paine  v.  Hoskina,  20. 

Parker  v.  Nichols,  22. 

Parmer  v.  Oakley,  22. 

Pattee  v.  Thomas,  12. 

Patterson  v.  Carneal,  34. 

Patterson  v.  Lemon,  21,  41. 

Paty  V.  Smith,  68. 

Paulaen  v.  Hall,  31. 

Payne  v.  Payne,  9. 

i^earce  v.  Patton,  60. 

Pearson  v.  Jamison,  29. 

Peebles  v.  Watts'  Admr.  9. 

Pemberton  v.  McRae,  37. 

Pennman  v.  Cole,  24. 

Pennington  v.  Clifton,  49. 

Pennoyer  v.  Neff,  3. 

People  V.  Bowring,  46. 

People  V.  Piatt,  62. 

Perkins  v.  Dibble,  47. 

Perkins  v.  Fairfield,  22. 

Perkins  v.  Gridley,  42. 

Perkins  v.  Winter,  15. 

Perry  v.  Adams,  53. 

Perry  v.  Clarkson,  30. 

Peters  v.  Caton,  .30. 

Peterson  v.  Chemical  Bank,  9. 

Petrie  v.  Clark,  9. 

Phelps  V.  Buck,  10. 

Phillips  V.  Coffee,  47. 

Phillips  V.  Dana,  30. 

Piatt's  Heirs  v.  McCullough's  Heits,  46. 

Pike  V.  Wassail,  44. 

Pinckney  v.  Smith,  15. 

Piper  V.  Elwood,  49. 

Pool  V.  Ellis,  53. 

Porter  v.  Mariner,  46. 

Potter  V.  Smith,  .33. 

Powers  V.  Bergen,  72. 

Prater  v.  McDonough,  28. 

Pratt  V.  Houghtaling,  20. 

Price  V.  Boyd,  49. 

Price  V.  Johnson,  4. 

Price  V.  Winter,  17,  21. 

Pryor  v.  Downey,  10, 11,  58,  62 

Puckett  V.  McDonald,  16. 

Pure  V.  Durall,  29. 

Pursley  v.  Hays,  50. 


Q. 

Quivey  v.  Baker,  55. 

R. 

Ragland  v.  Green,  53. 


TABLE    OF    CASES    CITED. 


XI 


Randolph  v.  Bayue,  5. 

Eankin  v.  Rankin,  9. 

Raborg  V.  Hammond,  4. 

Rawlings  v.  Bailey,  43. 

Rea  V.  McEachron,  43. 

Rector  V.  Haitt,  .S9. 

Reed  v.  Austin,  23. 

Reed  v.  Crosthwait,  49. 

Reed  v.  Radigan,  43. 

Remick  v.  Buiterlield,  33. 

Requa  v.  Holmes,  50. 

Ke>nolds  v.  Schmidt,  12. 

Reynolds  v.  AVilson,  28. 

Rheel  v.  Hicks,  49. 

Rice  V.  Parkman,  66. 

Richards  v.  Rote,  5S. 

Richardson  v.  Vicker,  48. 

Richmond  v.  Marston,  49,  51. 

Ricketts  V.  Ungangst,  32. 

Riddle  v.  Hill,  48. 

Riddle  v.  Roll,  33. 

Riddle  v.  Turner,  24. 

Rigney  v.  Uole,  8. 

Rikeman  v.  Kohn,  24. 

Riley  V.  McCord,  4. 

Ritter  v.  Scammell,  41. 

Roberts  v.  Casey,  43. 

Robb  V.  Irwin,  15. 

Robbins  v.  Bates,  41. 

Robertson  v.  Bradford,  53. 

Robertson  v.  Johnson,  20,  43. 

Robinson  v.  Hall,  46. 

Robinson  v.  Martel,  9. 

Roderigas  v.  East  River  S.  I.,  2,  4. 

Rogers  v.  Abbott,  55. 

Rogers  v.  Cawood,  30. 

Rogers  v.  Smith,  48. 

Rogers  v.  Wilson,  15. 

Rose's  Estate,  11. 

Rose  V.  Ingham,  30. 

Rose  V.  Newman,  29. 

Roseman  v.  Miller,  25. 

Root  V.  McFerrin,  8. 

Ross  V.  Luther,  25. 

Rozier  v.  Fagan,  69. 

Kucker  v,  Doolej-,  46. 

Rucker  v.  Dyer,  22. 

Ruckle  V.  Barbour,  46. 

Rule  V.  Broach,  16. 

Rummels  v.  Kaylor,  54. 

Rumwell  v.  St.  A.  Bank,  11,  12. 

Russell  V.  Rumsey,  60. 

Rj'den  V.  Jones,  33. 

Ryder  v.  Flanders,  11. 

S. 

Sackett  v.  Twining,  1. 
Salmond  v.  Price,  49,  51. 
Sands  v.  Lynham,  53. 
Sandford  v.  Granger,  11. 
Sandlfer  v.  Grantham,  9. 
Sargent  v.  Sturm,  49. 
Satcher  v.  Satcher's  Admr.,  15. 
Satterlee  v.  Mathewson,  62. 
Schaefer  v.  Causey,  53. 
Savage  v.  Benham,  20. 
Schneider  v.  McFariand,  16, 17. 
Schnell  v.  Chicago,  18. 
Schindel  v.  Keedy,  1. 
Schwinger  v.  Ulckok,  49. 
Scott  V.  Bentel,48. 
Scott  V.  Dunn,  49,  53. 
Scott  V.  Freeland,  33. 
Scott  V.  Gordon's  Ex.,  33. 
Sebastian  v.  Johnson,  29. 
Selsby  V.  Redlan,60. 
Sermon  v.  Black,  11. 
Seymour  v.  Ricketts,  14. 
Seward  v.  Dideen,  8. 


Sexton  V.  Nevers,  49. 

Shaefer  v.  Gates,  2. 

Sharkey  V.  BankstOD,63. 

Shehan'3  Heirs  v.  Barnett's,  68,  69. 

Sheldon  v.  Xewton,  15. 

Sheldon  v.  Wright,  13.  47. 

Shelton  v.  Hamilton,  24. 

Sheppard  v.  Rhea,  30. 

Sherman  v.  Buick,  72. 

Sherwood  v.  Fleming,  01. 

Shoenberger  v.  School  Directors,  72. 

Short  V.  Porter,  48,  53. 

Short  V.  Sears,  52. 

Shounk  V.  Brown,  60. 

Shrlver  v.  Lvun,  44. 

Sibley  V.  WatHe,  16. 

Sickles  V.  Hogeboon,  46. 

Sigourney  v.  fcibley,  6. 

Silian  v.  Coffee,  23. 

Sinclair  v.  Jackson,  68. 

Sittig  V.  Morgan,  50. 

Sitzman  v.  Pacquette,  10. 

Smith  V.  Arnold,  1. 

Smith  V.  Calllgan,60. 

Smith  V.  Drake,  33. 

Smith  V.  Flournoy,  11. 

Smith  V.  Finch,  47. 

Smith  V.  Lookabill,  35. 

Smith  V.  Meldren,  39. 

Smith  V.  Mundy,  30. 

Smith  V.  Randall,  28. 

Smith  V.  Rice,  2. 

Smith  V.  Schotts,  27. 

Smith  V.  Warden,  50. 

Smith  V.  West,  43. 

Smith  V.  Woolfolk,  7. 

Sneed  v.  Hopper,  9. 

Snevely  v.  Lowe,  15. 

Snider  v.  Coleman,  53. 

Snowhill  v.  Snowhill,  66. 

Snyder  v.  Ives,  55. 

Souier  v.  M.  G.  Hospital,  57,  66,  71. 

Solomon  v.  Peters,  28. 

Southard  v.  Perry,  50. 

Shurling  V.Todd,  32. 

Spnulding  V.  Baldwin,  8. 

Specks  V.  Riggins,  47. 

Speck  V.  Wohlien,  42. 

Spellman  v.  Dow,  10. 

Spencer  v.  Jennings,  11. 

Spragg  V.  Shriver,  50. 

Spragins  v.  Taylor,  20. 

Sprigg's  Estate,  20. 

Spring  V.  Kane,  15,  21. 

Stampley  v.  King,  5, 17. 

Stanley  v.  Xoble,  4. 

Staples  V.  Staples,  41. 

Stapp  V.  Toler,  33. 

State  V.  Doherty,  38. 

State  V.  Newark,  62. 

State  V.  Squires,  58, 62. 

State  V.  Stanley,  60. 

State  V.  Towl,  43. 

State  V.  Founts,  29. 

State  Bank  v.  Abbott,  54. 

Steele's  Ex.  v.  Moxley,  9. 

Stein  V.  Chambless,  30. 

Stevens  v.  Enders,  58. 

Stevens  v.  Hauser,  38. 

Stevenson's  Heirs  v.  McUeary,  '^. 

Stewart  v.  GrlfHth,  66. 

Steward  v.  Pettlgrew,  28,  55. 

Steward  v.  Stocker,  24. 

Stewart  V.  Stokes,  55. 

Stlllwell  V.  Swarthout.  18. 

Stockton  V.  Downey,  03. 

Stoltz's  Succession.  27. 

Stow  V.  Klmbull,ll,20. 

.strain  v.  Slurjihy,  47. 

Strong  V.  Beach,  54. 


xu 


TABLE    OF    CASES    CITED. 


Stroble  v.  Smith,  50. 
Strouse  v.  Dreunan,  11,  27. 
Stuiut  V.  Allen,  11,  12,  13,  14. 
Stulta  V.  Brown,  53. 
Stuigls  V.  Fiiy,  3. 
Sumner  v.  Parker,  2, 10. 
Sutton  V.  Sutton,  4. 
Suyihim  v.  Williamson,  68. 
Swan  V.  Wheeler,  29. 
Swiggart  v.  Uarber,  24. 
Synclor  v.  Koberts,  Jl. 
Sypert  v.  McCowen,  45. 

T. 

Tanner  v.  Stine,  47. 

Taylor  v.  Connor,  49. 

Taylor  v.  riace,  57. 

Taylor  v.  Gallowav,  9. 

Taylor  v.  Taylor,  25. 

Taylor  v.  M'alker,  8, 16. 

Teuney  v.  Poor,  11. 

Temple  v.  Cain,  33. 

Terwllligar  v.  Brown,  33. 

Teverbaugh  v.  Hawkins,  11. 

Tevis  V.  Pitcher,  4. 

Thatcher  v.  Devoe,  31. 

The  Monte  Allegro,  49. 

Thomas  y.  Le  Baron,  28,  47. 

Thomas  v.  Pullis,  66,  70. 

Thompson  v.  Boardman,  9. 

Thompson  v.  Davidson,  48. 

Thompson  v.  Morgan,  Gl. 

Thompson  v.  Munger,  4S. 

Thorn  v.  Ingram,  44. 

Thornton  v.  McGrath,  60,62. 

Thornton  v.  Mulquinne,  22. 

Threlkelds  v.  Campbell,  48. 

Threff  v.  Fritz,  48. 

Thurston  v.  Thurston,  G6. 

Tiernan  v.  Beam,  55. 

Tiernan  v.  Wilson,  34. 

Tllley  V.  Bridges,  48. 

Tintal  v.  Drake,  67. 

Tippett  V.  Mize,  9,  30. 

Tipton  V.  Powell,  43. 

Todd  V.  Dowd,  48. 

Todd  V.  Flournoy,  67. 

Tongue  v.  Morton,  15. 

Tooley  v.  Gridley,  50. 

Towle  V.  Forney,  68. 

Townsend  v.  Gordon,  12. 

Townsend  v.  Tallant,  17,  18, 19,  44,  50. 

Trent  v.  Trent,  11. 

Tremble  v.  Williams,  11. 

Truse  V.  Old,  9. 

Tucker  v.  Harris,  8. 

Turney  v.  Turney,  7, 11. 

Tuttle  V.  Heavy,  9. 

Tuttle  V.  Jackson,  46. 

Tyrrell  v.  Morris,  32. 

u. 

Underwood  v.  Lilly,  57. 
Underwood  v.  McVeigh,  40. 
United  States  v.  Arredondo,  2. 
United  States  v.  Cruikshank,  62. 
Unknown  Heirs  v.  Baker,  2. 


Valle  V.  Fleming,  S,  16,  43,  50,  53. 
Van  Alstyne  v.  Wimple,  45. 
Van  Campen  v.  Snyder,  23. 
Vandever  v.  Baker,  1. 
Varney  v.  Bevil,  4. 
Verdin  v.  Slocum,  48. 


Verry  v.  McClellan,  11. 
Vick  V.  Mayor,  16. 
Visek  V.  Doollttle,  35. 

W. 

Wade  v.  Carpenter,  43. 

Wakefield  v.  Campbell,  34. 

Walbrldge  v.  Day,  9. 

Walpole  V.  Elliott,  67. 

Walker  v.  Goldsmith,  21. 

Walker  v.  McKnight,  21. 

Walker  v.  Morris,  20. 

Walker  v.  Mulvean,  50. 

Wallace  v.  Loomls,  21,  41. 

Wallace  v.  Nichols,  41. 

Walsh  V.  Anderson,  41. 

Ward  v.  Bremer,  55, 

Ward  V.  Oats,  4. 

Ware  v,  Johnson,  55. 

Wales  V.  WlUard,  7. 

Walker  v.  Sauvinet,  62. 

Wallace  v.  Hall,  43. 

Warfleld's  Estate,  4. 

Warner  v.  Helm,  49. 

Washburn  v.  Carmichael,  16.      ^ 

Washington  v.  McCaughan,  10,  22,  48. 

Watklns  v.  Holman,  67,  68,  69. 

Watson  v.  Mercer,  60,  62. 

Watson  V.  Oates,  67.    ' 

Watson  V.  Keissig,  49. 

Wattles  V.  Hyde,  11. 

Watts  V.  Cook,  22. 

Watts  V.  Scott,  43. 

Watts  V.  Waddie,  4. 

Weaver  v.  Guyer,  34. 

Weed  V.  Donovan,  60. 

Weed  V.  Edmonds,  11. 

Wehrle  v.  Wehrle,  35. 

Welster  v.  Hade,  62. 

Welch  v.  Battern,  24. 

Welch  V.  Lewis,  21. 

Wellman  v.  Lawrence,  30,  46. 

Wells  V.  Chaffln,9. 

Wells  V.  Polk,  20. 

West  V.  Cochran,  47. 

West  V.  Waddle,  33. 

Weston  V.  Clark,  23. 

White  V.  Foote  L.  &  M.  Co.,  2. 

White  V.  Iseton,  33. 

White  V.  Luning,  47. 

White  Mt.  R.  R.  v.  White  Mts.  R.  R.,  59. 

Whitman  v.  Fisher,  8,  41. 

Whitman  v.  Taylor,  21. 

Wler  V.  Davis,  32. 

Wight  V.  Wallbaum,  4. 

Wilchinsky  v.  Cavender,  49. 

Wilcox  V.  Raben,  44. 

Wildes  V.  Vanvoorhis,  60. 

Wiley  V.  White,  22. 

Wilkerson  v.  Allen,  44. 

Wilkinson  v.  Filby,  22,  50. 

Wilkinson  v.  Leland,  56. 

Williams  V.  Childress,  11. 

Williams  v.  Glenn's  Admr.,  48. 

Williams  v.  Morton,  21. 

Williams  v.  Reed,  22. 

Williams  v.  Warren,  11. 

Williams  v.  Willlard,  50. 

Williams  v.  Woodman,  47. 

Williamson  v.  Ball,  68. 

Williamson  v.  Berry,  21,  42,  68. 

Williamson  v.  I.  P.  Congregation,  68. 

Williamson  v.  Branch  Bank,  8. 

Williamson  v.  Williamson,  21,  30,  53,  i,', 

69. 
Wlllard  V.  Nason,  38. 
Willis  V.  Nicholson,  44. 
Willis  V.  Cowper,  4. 
Wilson  V.  Armstrong,  11. 


TABLE    OF    CASES    CITED. 


Xlll 


Wilson  V.  Bigger,  50. 

Wilson  V.  Campbell,  25. 

Wilson  V.  Hastings,  11, 13. 

Wilson  V.  Holt,  11,  53. 

Wilson  V.  Twitty,  39. 

Winchester  v.  Winchester,  21. 

Windsor  v.  McVeigh,  7. 

Wing  V.  Dodge,  13. 

AVinslow  V.  Crowell,  53. 

Winston  v.  McFendon,  16, 17. 

Wisdom  V.  Parker,  11. 

Wisner  v.  Brown,  16. 

Withers  v.  Patterson,  2,  i,  10, 11,  62. 

Wolford  T.  Dugan,  25. 

Wood  V.  Augustine,  26. 

Wood  v.  Colvin,23. 

Wood  V.  Crawford,  8. 

Wood  V.  McChesney,  11. 

Woodbury  v.  Parker,  33. 

Woodruff  V.  Cook,  II. 

Woods  V.  Monroe,  12, 19. 

Wooters  V.  Arledge,  37. 

Worten  v.  Howard,  32. 

Worthington  v.  Duncan,  11. 

Worthington  v.  McRoberts,  48. 

Worfman  v.  Skinner,  55. 


Wright  V.  Kdwards,  11. 
Wright  V.  Hawkins,  61. 
Wright  V.  Ware,  11. 13,  20. 
Wyatfs  Admr.  v.  Rambo,  11,  20. 
Wyant  y.  TuthlU,  30,  -14. 
Wyman  v.  Campbell,  22. 
Wynns  v.  Alexander,  32. 

Y. 

Yarboro  v.  Brewster,  35. 
Yeomans  v.  Brown,  19,  20. 
Yomans  v.  Bird,  25. 
Young  V.  Dowiug,  55. 
Young's  Admr.  v.  Rathbone,  2. 
Youngblood  v.  Cunningham,  25. 
Young  V.  Young,  11. 

z. 

Zebach  V.  Smith,  9. 
Zeigler  v.  Shorns,  41. 
Zingsem  V  Kidd,55. 
Zuver  V.  Clark,  27. 


CHAPTER  I. 


INTRODUCTORY. 

§  1.  Plan  and  Scope  of  the  Work — Sundry  Definitions. 

— We  propose,  in  the  following  pages,  to  direct  our  atten- 
tion, and  that  of  our  readers,  to  void  execution  and  judicial 
sales,  and  the  legal  and  equitable  rights  of  purchasers 
thereat.  Having  considered  these  questions,  we  shall  con- 
clude with  inquiries  concerning  the  constitutionality  of 
those  curative  acts,  and  that  class  of  special  legislation, 
which  attempt  either  to  validate  invalid  judicial  sales,  or  to 
authorize  involuntary  sales,  in  the  absence  of  any  judicial 
proceedings  whatever.  In  the  terms  "judicial  and  execution 
sales,"  as  we  here  use  them,  are  embraced  all  sales  made  in 
pursuance  of  the  orders,  judgments  or  decrees  of  courts,  or 
to  obtain  satisfaction  of  such  orders,  judgments  or  decrees. 
Precisely  what  sales  can  accurately  be  denominated  "judi- 
cial," is  not  very  well  settled.  Of  course  they  must  be  the 
result  of  judicial  proceedings,  and  the  order,  decree  or 
judgment  on  which  they  are  based,  must  direct  the  sale  of 
the  property  sold.  There  can  be  no  judicial  sale  except  on 
a  pre-existing  order  of  sale.^  And  probably  the  order  of 
sale  is  not,  alone,  sufficient  to  entitle  the  sale  to  bo  called 
judicial.     In  a  State  where  an  administrator's  sale,  though 

1  Minnesota  Co.  v.  St.  Paul  Co.,  2  Wall.  G40. 

(1) 


§    1  VOID    JUDICIAL    SALES. 

made  bv  virtue  of  an  order  of  court,  was  not  required  to 
be  reported  to  the  court  nor  to  be  confirmed,  Judge  Stoiy 
held  it  not  to  be  a  judicial  sale.i  If,  however,  a  sale  is 
ordered  by  the  court,  is  conducted  by  an  officer  appointed 
by,  or  subject  to  the  control  of  the  court,  and  requires  the 
approval  of  the  court  before  it  can  be  treated  as  final,  then 
it  is  clearly  a  judicial  sale.  Such  a  sale  is  unquestionably 
a  sale  by  the  court.^  Sales  made  in  proceedings  for  parti- 
tion are  undoubtedly  judicial  ;3  so  are  sales  made  by  ad- 
ministrators and  guardians  under  the  practice  pursued  in 
most  of  the  States.*  Execution  sales  are  not  judicial.^ 
They  must,  it  is  true,  be  supported  by  a  judgment,  decree 
or  order.  But  the  judgment  is  not  for  the  sale  of  any 
specific  property.  It  is  only  for  the  recovery  of  a  desig- 
nated sum  of  money.  The  court  gives  no  directions,  and 
can  give  none  concerning  what  property  shall  be  levied 
upon.  It  usually  has  no  control  over  the  sale  beyond  set- 
ting it  aside  for  non-compliance  with  the  directions  of  the 
statutesjof  the  State.  The  chief  differences  between  execu- 
tion and  judicial  sales,  are  these:  the  former  are  based  on 
a  general  judgment  for  so  much  money,  the  latter  on  an 
order  to  sell  specific  property;  the  former  are  conducted 
by  an  officer  of  the  law  in  pursuance  of  the  directions  of  a 
statute,  the  latter  are  made  by  the  agent  of  a  court  in  pur- 
suance of  the  directions  of  the  court;  in  the  former  the 
sheriff  is  the  vendor,  in  the  latter,  the  court;  in  the  former 
the  sale  is  usually  complete  when  the  property  is  struck  off 
to  the   highest  bidder,  in  the  latter  it  must  be  reported  to 

1  Smith  V.  Arnold,  5  Mason,  420. 

2  Forman  v.  Hunt,  3  Dana,  621. 

3  Freeman  on  Cotenancy  and  Partition,  sec.  548;  Hutton  v.  Williams, 
35  Ala.  503;  s.  c,  76  Am.  Dec.  297;  Girard  L.  Ins.  Co.  v.  F.  &  M.  Bank, 
57  Pa.  St.  388. 

*  Vandever  v.  Baker,  13  Pa.  St.  121;  Sackett  v.  Twining,  18  Pa.  St. 
199;  S.  C,  57  Am.  Dec.  599;  Halleck  v,  6113%  9  Cal.  195;  s.  c,  70  Am. 
Dec.  643 ;  Hutton  v.  Williams,  35  Ala.  517 ;  s.  c,  76  Am.  Dec  297 ;  Moore  v. 
Shultz,  13  Pa.  St.  98;  s.  c,  53  Am.  Dec.  446;  Lynch  v.  Baxter,  4  Tex. 
431;  s.  c,  51  Am.  Dec.  735;  Mason  v.  Osgood,  64  N.  C.  467. 

5  Griffith  V.  Fowler,  18  Vt.  394. 

2 


VOID    JUDICIAL    SALES.  §   1 

and  approved  b}-  the  court. ^  But  our  present  i)urpose  does 
not  require  us  to  announce  any  tests  by  which  to  determine 
what  sales  are  judicial,  nor  to  separate  the  different  classes 
of  judicial  sales  from  one  another.  We  shall  assume  that 
judicial  sales  embrace:  1st,  those  made  in  chancery;  2d, 
those  made  b^^  executors,  administrators  and  guardians, 
when  acting  by  virtue  of  authority  derived  from  orders  of 
sale  obtained  in  judicial  i)roceedings ;  and,  3d,  all  other 
cases  where  property  is  sold  under  an  order  or  decree  of 
court  designating  such  property  and  authorizing  its  sale. 
Void  sales,  whether  execution  or  judicial,  may,  for  conven- 
ience of  treatment,  be  divided  into  two  great  classes:  1st. 
those  which  are  void  because  the  court  had  no  authority  to 
enter  the  judgment  or  order  of  sale ;  2d,  those  which,  thouirh 
based  on  a  valid  judgment  or  order  of  sale,  are  invalid  from 
some  vice  in  the  subsequent  proceedings.  The  word  void, 
though  apparently  free  from  ambiguity,  is  employed  in  vari- 
ous senses.  Accurately  speaking,  a  thing  is  not  void  un- 
less it  has  no  force  or  effect  whatever.  "A  conveyance  can- 
not be  said  to  be  utterly  void,  unless  it  is  of  no  effect  what- 
soever, and  is  incapable  of  confirmation  or  ratification." - 
"Another  test  of  a  void  act  or  deed  is,  that  every  stranger 
may  take  advantage  of  it,  but  not  of  a  voidable  one.  Again, 
a  thing  may  be  void  in  several  degrees:  1st,  void,  so  as  if 
never  done,  to  all  purposes,  so  that  all  persons  may  take  ad- 
vantage thereof;  2d,  void  to  some  purposes  only;  3d,  so 
void  b}'  operation  of  law  that  he  that  will  have  the  benefit 
of  it  mav  make  it  good."  ^  In  the  terms  "  void  sales,"  as 
emi)loved  in  this  work,  we  include  all  those  sales  which,  as 


1  Andrews  v.  Seotton,  2  Blaad,  G36;  Scbiadel  v.  Keed.v,  4;{  Md.  417.  A 
sale  in;Ade  by  assignees  acting  under  an  assignment  for  the  bt'uetit  of 
creditors,  is,  in  Ohio,  a  judicial  sale,  because  tbe  proceedings  and  sale 
are,  by  the  statute  of  that  State,  required  to  be  conducted  under  the  su- 
pervision and  subject  to  the  confirmation  of  the  probate  court.  Dres- 
liack  V.  Stein,  41  Ohio  St.  70. 

2  Boyd  V.  Blankuiaii,  20  Cal.  3."j;  s.  C,  87  Am.  Dec.  74*i. 

^  Anderson  v.  lioberts,  18  .Johns.  r)27;  s.  C,  'J  Am.  Dec.  2:}."). 


§   1  VOID   JUDICIAL   SALES 

against  the  original  purchaser,  may,  without  any  proceed- 
ings to  set  them  aside,  be  treated  as  not  transferring  the 
title  of  the  property  assumed  to  be  sold.  These  sales,  it 
will  be  shown,  may  be  ratified  or  confirmed.  Many  of  them 
give  rise  to  important  equitable  rights  in  favor  of  the  origi- 
nal purchaser  or  his  grantees-  Some  of  them,  while  con- 
ferring neither  legal  nor  equitable  rights  on  the  original 
purchaser,  become,  in  the  hands  of  his  innocent  vendees  for 
value,  in  good  faith  and  without  notice,  valid  both  at  law 
and  in  equity. 


VOID  JUDICIAL  Sales.  §  2 


CHAPTER  n. 


SALES  VOID  BECAUSE  THE  COURT  HAD  NO  AUTHORITY  TO 
ENTER  THE  JUDGMENT,  OR  ORDER  OF  SALE. 

SECTION. 

2.    Jurisdiction,  and  the  Effect  of  a  Want  of. 
.S.    Kinds  and  Sources  of  Jurisdiction. 

4.  Instances  of  Want  of  Jurisdiction  of  Probate  Courts  over  the  Sub- 

ject-matter. 

5.  Means  of  Acquiring  Jurisdiction. 

6.  Cases  in  which  the  Judge  is  Disqualified  from  Acting. 

7.  Suspension  or  Loss  of  Jurisdiction. 

8.  General  Principles  Governing  Questions  of  Jurisdiction. 

ORDERS   OF   SALE   IN   PROBATE,   AND   HOW  AUTHORITY  TO    MAKE   MUST 

BE  OBTAINED. 

9.  When  Sales  may  be  made  without  any  License  of  Court. 

10.  Petition  for  License  must  be  by  Person  Competent  to  Present  it. 

11.  Sufficient  Petition  is  Indispensable;    what  Petitions  are  Suffi- 

cient. 

12.  Statutes  Designating  what  Petition  must  Contain. 

13.  Petitions  for  Sales  Liberally  Construed;— Referring    to    other 

Papers. 

14.  Not  Fatal  that  Petition  is  not,  in  fact.  True. 

15.  Notice  of  Application  to  Sell,  Cases  Holding  it  Unnecessary. 

16.  Notice  of  Application  to  Sell,  Cases  Holding  it  Necessary. 

17.  Notice  of  Application;  Service  on  Minor  not  to  be  Waived  nor 

Dispensed  with. 

18.  Notice  of  Application  must  be  given  in  the  Manner  Prescribed  by 

Law. 

19.  Notice  of  Application  must  be  given  for  the  Time  Prescribed  by 

Law . 

20.  The  License,  or  Order  to  Sell,  and  its  Effect  as  an  Adjudiralion. 

§  2.     The    Effect    of    Want  of    Jurisdiction. — A    void 
judgment,  order  or  decree,  in  whatever  tribunal   it  may  be 

5 


§   2  VOID   JUDICIAL    SALES. 

entered,  is,  in  legal  effect,  nothing.  "  All  acts  performed 
under  it,  and  all  claims  flowing  out  of  it,  are  void."  ^  Hence, 
a  sale,  based  on  such  a  judgment,  has  no  foundation  in  law. 
It  must  certainly  fall.^  Judicial  proceedings  are  void  when 
the  court,  wherein  they  take  place,  is  acting  without  juris- 
diction. '*  The  power  to  hear  and  determine  a  cause  is  juris- 
diction; it  is  coram  judice  whenever  a  cause  is  presented 
which  brings  this  power  into  action  ;  if  the  petitioner  states 
such  a  case  in  his  petition,  that  on  a  demurrer  the  court 
would  render  judgment  in  his  favor,  it  is  an  undoubted  case 
of  jurisdiction."  3  "  It  is,  in  truth,  the  power  to  do  both  or 
either — to  hear  without  determining,  or  to  determine  with- 
out hearing."'^  It  must  be  constantly  remembered  that 
jurisdiction  is  indispensable  to  the  validity  of  all  judicial 
proceedings  ;  that  if  the  proceedings  taken  to  obtain  juris- 
diction are  radically  defective,  all  subsequent  steps  are  un- 
availing, however  regular  they  may  be.  Thus,  though  the 
proceedings  in  a  probate  court  to  obtain  an  order  of  sale, 
and  also  the  proceedings  subsequent  to  the  order,  are  all 
perfectly  regular,  yet  the  sale  is  utterl}'  void,  if  it  can  be 
shown  that  there  was  no  valid  grant  of  administration,  be- 
cause the  court  had  no  jurisdiction  to  grant  it.^ 

1  Freeman  on  Judo:ments,  sec.  117;  "White  v.  Foote,  L.  &  M.  Co.,  29 
W.  Va.  3S5;  S.  C,  6  Am.  St.  R.  650. 

2  Freeman  on  Executions,  sec.  16,  note  2;  Gray  v.  Hawes,  8  Cal.  562; 
Gunz  V.  Heffner,  33  Minn.  215 ;  s.  C,  22  N.  W.  Rep.  386 ;  Shaefer  v.  Gates,  2 
B.  Men.  453;  s.  c,  38  Am.  Dec.  164;  Cravens  v.  Moore,  61  Mo.  178; 
Barber  V.  Morris,  37  Minn.  194;  s.  c.,5  Am.  St.R.  836.  A  sale  under  a  void 
judgment  does  not  entitle  the  purchaser  to  the  benefit  of  a  statute  re- 
quiring actions  to  be  brought  "within  five  years,  where  the  defendant 
claims  title  to  the  land  in  question,  by  or  through  some  deed  made  upon 
a  sale  thereof  by  an  executor,  administrator  or  guardiau,  or  by  a  sheriff 
or  other  proper  ministerial  officer  under  the  order,  judgment,  decree  or 
process  of  a  court  or  legal  tribunal  of  competent  jurisdiction  within 
this  State."    Miller  v.  Babcoek,  29  Mich.  526. 

3  United  States  v.  Arredondo,  6  Pet.  709. 

4  Ex  parte  Bennett,  44  Cal.  88. 

5  Summer  v.  Parker,  7  Mass.  79;  Unknown  Heirs  y.  Baker,  23  111.  490; 
Smith  V.Rice,  11  Mass.  .507;  Chase  v.  Ross,  36  Wis.  267;  AVithers  v. 
Patterson,  27  Tex.  501;  s.c,  86  Am.  Dec.  643;  Ex  parte  Baker,  2  Leigh, 
719;  Miller  v.  Jones,  26  Ala.  247.     (See  sec.  lO.j 

6 


VOID    JUDICIAL    SALES.  §   3 

It  may  also  be  shown  that  au  apparent  grant  of  adminis- 
tration was  not  the  act  of  the  court  or  judge,  but  of  the 
clerk  or  of  some  other  person,  who  used  blanks  signed  by 
the  judge.  Judicial  authority  cannot  be  delegated  ;  and, 
althouo-h  the  iudore  left  sio-ned  blanks  with  the  clerk,  in- 
tendins  for  the  latter  to  till  them  up,  and  issue  or  enter 
them  as  the  act  of  the  court,  still  the  clerk's  act  is  not  judi- 
cial, and  his  grant  of  administration  is  not  binding  as  a 
judicial  act.^ 

The  court  may,  in  the  particular  instance  in  which  it  has 
acted,  proceed  without  authority.  If  so,  its  action  is  extra- 
judicial and  cannot  support  a  sale  based  upon  it.  Hence, 
if  a  partition  sale  is  made  in  an  action  in  which  service  of  pro- 
cess was  omitted  as  to  some  of  the  cotenants,  or  in  a  case 
where  there  were  persons  owning  estates  in  remainder,  and 
by  the  local  statutes  the  court  had  no  authority  under  such 
circumstances  to  order  or  confirm  a  sale,  the  sale  in  the 
case  first  supposed  cannot  divest  the  interest  of  the  co- 
tenants  who  were  not  served  with  process,^  while  in  the 
latter  case  the  whole  proceedings  are  void  for  want  of  juris- 
diction over  the  subject-matter.^ 

§  3.  Kinds  and  Sources  of  Jurisdiction, — "Jurisdic- 
tion is  conferred  upon  courts  by  the  constitution  and  laws 
of  the  country  in  which  they  are  situate,  authorizing  them 
to  hear  and  determine  causes  between  parties,  and  to  carry 
their  judgments  into  eifect."*  The  power  to  hear  a  par- 
ticular class  of  cases,  or  to  determine  controversies  of  a 
specified  character,  is  called  jurisdiction  over  the  subject- 
matter.  This  jurisdiction  is  conferred  by  the  "authority 
which  organizes  the  court,  and  is  to  be  sought  for  in  the 
general  nature  of  its  powers,  or  in  authority  specially  con- 
ferred by  statute.     If  the  order  or  judgment,  on  which  a 

1  Roderigas  v.  East  River  Sav.  Inst.,  7G  N.  Y.  31G;  s.  C,  32  Am.  Rep. 
309. 

2  Childs  V.  Ilarpman,  72  Ga.  791. 

3  Young's  Adnir.  v.  Rathbone,  16  N.  J.  E(i.224;  s.c,  84  Am.  Dec.  151. 
*  Freeman  on  Judgments,  sec.  119. 

7  (2) 


§   3  VOID    JUDICIAL    SALES. 

sale  was  made,  was  one  resultiDo;  from  a  controversy  which 
the  court  had  in  no  circumstances  any  power  to  determine, 
there  was  an  absence  of  jurisdiction  over  the  subject-matter, 
and  the  sale  is  incurably  void."i  In  addition  to  jurisdic- 
tion over  the  subject-matter,  it  is  also  indispensable  that  the 
court  should  have  jurisdiction  over  the  person  or  thing 
against  which  its  judgment  operates.  Jurisdiction  over  a 
subject-matter  must  be  conferred  bylaw;  ^  jurisdiction  ovei 
a  person  may  be  conferred  by  his  consent.  If  jurisdiction 
over  a  person  is  not  conferred  by  his  consent,  or  obtained 
in  the  manner  designated  by  law,  the  judgment  against  him 
is  void,  and  can  support  no  sale  of  his  property. 

Where  jurisdiction  has  not  been  obtained  by  consent, 
inquiry  must  be  instituted  for  the  purpose  of  ascertainino 
whether  the  court  could  take  jurisdiction  without  such 
assent.  The  statute  purporting  to  confer  such  jurisdictioc 
may  not  be  conclusive  of  the  question,  for  no  State  or  natioE 
has  any  authority  to  legislate  with  respect  to  persons  oi 
property  not  within  its  jurisdiction.^  If  the  defendant  was 
not  a  resident  of  the  State  or  nation  whose  tribunals  pro- 
nounced judgment  against  him,  and  was  not  served  with 
process  within  its  territory,  and  did  not  voluntarily  appeal 
and  submit  himself  to  their  jurisdiction,  such  judgment 
cannot  operate  against  him  in  personam,  whether  the  serv- 
ice of  process  was  actual  or  constructive.*  In  such  cases 
the  vice  of  the  proceedings  is  not  dependent  on  the  mode 
of  service  of  the  process  of  the  court,  but  upon  the  fact  that 
the  court  had  no  power  to  require  the  defendant  to  appeal 
before  it  and  submit  his  rights  to  its  decision.  Hence,  in  « 
proceeding  against  a  non-resident  infant  to  cancel  a  con- 
tract, the  court  has  no  authority  over  him.  It  cannot  make 
service  of  process  on  him  out  of  the  State,  and  from  such 
service  acquire  authority  to  appoint  a  guardian  ad  litem  tc 

1  Ibid.,  sec.  120. 

2  Dakin  v.  Demmiug,  6  Pai.  95. 

3  Sturgis  V.  Fay,  16  Ind.  429;  s.  C,  79  Am.  Dec.  440. 

^  Pennoyer  v.  Neff,  95  U.  S.  722;  Belcher  v.  Chambers,  53  Cal.  636. 

8 


VOID    JUDICIAL    SALES.  §   4 

appear  for  him.  A  judgment  supported  by  such  service 
and  the  appointment  and  appearance  of  such  guardian  is 
void.^  The  courts  of  every  nation,  however,  have  jurisdic- 
tion over  all  property  within  its  territorial  limits,  irre- 
spective of  the  citizenship  or  residence  of  its  owners,  and 
may  exercise  this  jurisdiction  by  proceedings  ^?^  rem  against 
such  property.  Perhaps  the  proceeding  will  be  treated  as 
in  rem  in  every  instance  in  which  the  property  is  seized  or 
levied  upon  under  process  issued  in  the  case,  though  such 
seizure  or  levy  is  professedly  for  the  purpose  of  creating  a 
lien.  It  has,  therefore,  been  held  that  if  real  estate  of  a 
non-resident  defendant  is  attached,  a  judgment  against  him 
in  the  same  action,  founded  on  constructive  service  of  pro- 
cess, will  support  a  sale  of  such  real  estate.^ 

§  4.  Instances  of  Want  of  Jurisdiction  over  the  Sub- 
ject-matter are  found  more  frequently  in  probate  proceed- 
ings than  elsewhere.  If  the  statute  of  a  State,  governing 
the  settlement  and  distribution  of  the  estates  of  deceased 
persons,  makes  no  provision  concerning  the  estates  of  per- 
sons who  died  prior  to  the  passage  of  such  statute,  then  an 
attempt  to  administer  on  one  of  the  last  named  estates 
is  a  usurpation  of  authority  over  a  subject-matter  not  within 
the  jurisdiction  of  the  court,  and  the  proceedings  are,  there- 
fore, invalid.^  So,  if  a  probate  court  should  make  an 
order  for  the  sale  of  property  situate  in  another  State  than 
the  one  in  which  the  order  is  made,  this  would  also  be  an 
assumption  of  iiuthority  over  a  subject-matter  not  within 
the  jurisdiction  of  the   court,  and  would  be  void.*      This 

1  Insurance  Company  v.  Bangs,  103  U.  S.  435. 

2  Anderson  V.  Goff,  72  Cal.  65;  s.  C,  1  Am.  St.  R.  34;  Freeman  v. 
Aldersou,110  U.  S.  285;  O'Sullivan  v.  Overton,  56  Conn.  602. 

3  Downer  v.  Smith,  24  Cal.  114;  Coppinger  v.  Rice,  33  Cal.408;  Grimes 
V.  Norris,  6  Cal.  621 ;  s.  C,  65  Am.  Dec.  545;  Adams  v.  Norris,  23  How. 
(U.  S.)  353;  Tevis  v.  Pitclier,  10  Cal.  465;  McNeil  v.  First,  4  W.  C.  Rep. 
421;  s.  C,  66  Cal.  105. 

4  Nowler  v.  Coit,  1  Ohio,  519;  s.  c,  13  Am.  Dec.640;  Salmond  v.  Price, 
13  Ohio,  368;  s.  C,  42  Am.  Dec.  204;  Watts  v.  Waddle,  6  Pet.  380;  Wills 
V.  Cowper,  2  Ohio,  124;  Latimer  v.  R.  R.  Co.,  43  Mo.  105;  s.  c,  97  Am. 
Dec.  378;  Price  v.  Johnson.  1  Ohio  St.  390. 

9 


§  4  VOID    JUDICIAL    SALES. 

rule  has  been  held  to  be  applicable  even  where  personal 
property,  thouofh  in  another  State  at  the  death  of  its  owner, 
was  subsequently  brought  within  the  State  where  the  order 
Avas  made.^  Courts  of  probate  have  no  power  to  grant 
letters  of  administration,  nor  letters  testamentary,  on  the 
estate  of  a  living  person.  Letters  may  be  granted,  under 
a  mistake  of  fact,  upon  the  supposition  that  the  testator, 
or  other  person,  is  dead.  The  case  is,  nevertheless,  one  in 
which  the  court  has  no  jurisdiction.  If  he  who  was  sup- 
posed to  have  died  ist  in  fact,  living,  all  probate  sales  and 
other  proceedings  are  void,  and  can  have  no  effect  on  his 
title.^  Grants  of  letters  of  administration  were  formerly 
judged  to  be  void  unless  the  deceased  did,  in  fact,  die  intes- 
tate.^ Surrogate  and  probate  courts  are  usually  limited  in 
their  jurisdiction  to  a  specitied  class  of  cases.     Thus,  it  is 

1  Varner  v.  Bevil,  17  Ala.  286. 

2  Duncan  v.  Stewart,  25  Ala.  408;  s.  c,  60  Am.  Dec.  527;  Griffith  v. 
Frazier,  8  Cranch,  9;  Fisk  v.  Norvel,  9  Tex.  13;  s.  c,  58  Am.  Dec.  128; 
Jochumseu  v.  Suffolk  Sav.  Bank,  3  Allen,  87;  Withers  v.  Patterson,  27 
Tex.  496;  s.  c,  86  Am.  Dec.  643;  Beckett  v.  Selover,  7  Cal.  215;  s.  C, 
68  Am.  Dec.  237.  But  a  majority  of  the  court  of  appeals  of  New  York 
declared,  in  Koderigas  v.  East  River  Sav.  Inst.,  63  N.  Y.  460;  s.  c,  20 
Am.  Rep.  555,  that  a  grant  of  administration  upon  the  estate  of  a  liviug 
person  was  not  void ;  but  see  a  further  decision  in  the  same  case,  76  N.  Y. 
316;  s.  c,  32  Am.  Rep.  309. 

3  Holyoke  V.  Haskins,  5  Pick.  24;  s.  c,  16  Am.  Dec.  372;  Brock  v. 
Frank,  51  Ala.  91;  Kane*  v.  Paul,  14  Pet.  39;  Griffith  v.  Frazier,  8 
Cranch,  24.  This  rule  is  believed  to  be  obsolete  in  the  United  States. 
In  its  stead  we  have  adopted  the  rule  that  a  grant  of  administration, 
made  by  a  court  having  jurisdiction  of  the  subject-matter  and  of  the 
particular  case,  while  it  remains  unrevoked,  cannot  be  regarded  as  void. 
"Nor  can  the  recall  or  repeal  of  the  appointment  be  fairly  regarded  as 
placing  the  appointees  of  the  court  in  the  same  position  as  if  the  decree 
never  existed.  On  the  contrary,  all  acts  done  in  the  due  course  of  ad- 
ministration, while  such  decrees  remained  in  force,  must  be  held  en- 
tirely valid."  Redfield  on  Wills,  Part  II,  p.  109;  Bigelow  v.  Bigelow, 
4  Ohio,  138;  s.  c,  19  Am.  Dec.  597;  Kittredge  v.  Folsom,  8  N.  H.  98; 
Ward  V.  Oakes,  42  Ala.  225;  Jennings  v.  Moses,  38  Ala.  402;  Broughton 
v.  Bradley,  34  Ala.  694;  Brock  v.  Frank,  51  Ala.  91.  But  one  who  deals 
with  an  executor  is  not  protected  if  he  has  notice  of  the  existence  of  a 
later  will  than  the  one  admitted  to  probate.  Gaines  v.  De  La  Croix,  6 
Wall.  720. 

10 


VOID    JUDICIAL    SALES.  §   4 

generally  required  that  a  man's  estate  be  settled  in  the 
county  where  he  resided  at  the  time  of  his  death.  If  it 
appears  that  letters  testamentary  or  of  administration  were 
granted  in  a  county  in  which  the  deceased  did  not  reside, 
the  whole  proceedings  must  be  regarded  as  void.^  How, 
and  in  what  circumstances  this  fact  may  be  made  to  appear, 
are  questions  to  which  diverse  answers  may  be  found  in  the 
authorities.  Undoubtedly  the  records  of  the  court  may  be 
inspected.  If  they  show  the  non-residence  of  the  deceased, 
they  are  competent  evidence  of  their  own  invalidit}'.  If 
they  fail  to  assert  anything  about  the  residence,  either  in 
the  averments  of  the  petition  or  in  the  findings  of  the  court, 
we  should  judge  this  to  be  fatal.  In  every  case  it  ought  to 
appear,  prima  facie ^  that  the  court  has  jurisdiction  over  the 
estate.  Usuallj^  a  petition  is  presented  to  the  court  or 
judge,  in  which  the  facts  authorizing  the  assumption  of 
jurisdiction  in  the  particular  case  are  stated.  The  duty  of 
the  court  or  judge  is  to  investigate  and  determine  the  truth 
of  these  jurisdictional  allegations.  Its  subsequent  grant  of 
letters  implies  that  these  allegations  have  been  found  to  be 
true.  "Whenever  the  jurisdiction  of  a  court  not  of  record 
depends  on  a  fact  which  it  is  required  to  ascertain  and  set- 
tle by  its  decision,  such  decision,  if  the  court  has  jurisdic- 
tion of  the  parties,  is  conclusive,  and  not  subject  to  any 
collateral  attack."  ^  Hence,  in  a  case  where  a  probate 
court  has,  upon  a  petition  asserting  the  essential  jurisdic- 
tional facts,  and  after  notice  to  the  parties  in  interest,  given 
in  the  manner  prescribed  by  hiw,  granted  letters  testamentary 
or  of  administration,  the  proceedings  cannot  be  avoided 
collaterally,  in  the  majority  of  the  States,  by  proof  that  the 

1  Beckett  V.  Selover,  7  Cal  215;  s.  c,  G8  Am.  Dec.  237;  Jlaynes  v. 
Meeks,  10  Cal.  110;  s.  c,  70  Am.  Dec.  703;  Harlan's  Estate,  24 Cal.  182; 
S.  c,  85  Am.  Dec.  58;  Moore  v.  Philbrick.  32  Mc  102;  s.  c,  52  Am. 
Dec.  642;  Muuson  v.  Xewson,  9  Tex.  109;  Cutt.s  v.  lluskius,  9  Mass.  543; 
Ilolyoke  v.  Haskins,  5  Pick.  20,  and  9  Pit-k.  259;  s.  C,  16  Am.  Dec.  372; 
Goodrich  v.  Pendleton,  4  Johns.  Ch.  549. 

2  Freeman  on  Judgments,  sec.  523. 

11 


§   5  VOID    JUDICIAL    SALES. 

deceased  did  not  die  witiiin  the  jurisdiction  of  the  court. ^ 
Any  other  rule  would  lead  to  the  most  embarrassing  results. 
The  residence  of  a  deceased  person  can  be  determined  only 
by  hearing  parol  evidence.  Different  judges  may  reach 
opposite  conclusions  from  the  same  evidence.  The  parties 
in  interest  may  at  separate  times  produce  different  evidence 
on  the  same  issue.  If,  after  a  court  had  heard  and  decided 
the  issue  concerning  the  residence  of  the  deceased,  the 
question  remained  unsettled  to  such  an  extent  that  it  could 
be  re-litigated  for  the  purpose  of  avoiding  all  the  proceed- 
ings of  the  court,  no  person  would  have  the  temerity  to 
deal  with  executors  or  administrators. 

§  5.  Methods  of  Acquiring  Jurisdiction. — Jurisdiction 
over  a  complainant  is  obtained  by  his  coming  before  the 
court  and  making  his  complaint  in  a  manner  recognized  by 
law.  This  is  usually  by  a  statement  in  writing,  filed  in  the 
court  or  with  the  clerk  thereof.  Jurisdiction  over  the  de- 
fendant is  obtained  by  his  voluntary  appearance  in  the 
action,  or  by  the  service  of  process  upon  him.  Jurisdic- 
tion over  a  thing  proceeded  against  in  rem  is  acquired  by 
its  seizure  under  the  process  of  the  court.'^  If  a  defendant 
neither  appears,  nor  is  served  with  process,  a  judgment 
against  him  is  void.  If,  however,  he  is  served  with  pro- 
cess which  is  irregular  in  form,  or  the  mode  of  service  is 
irregular,  he  must  generally  object  to  such  irregularity ;  if 
he  fails  to  do  so,  and  judgment  is  entered  against  him,  it 
will    usually     not    be   treated   as   void    when    collaterally 

1  Irwin  V.  Scribner,  18  Cal.  499;  Lewis  v.  Dutton,  8  How.  Pr.  103; 
Andrews  V.  Avery,  14  Gratt.  236;  s.  c,  72  Am.  Dec.  355;  Warfield's 
Estate,  22  Cal.  51;  s.  c,  83  Am.  Dec.  49;  Sutton  v.  Sutton,  13  Vt.  71; 
Fishery.  Bassett,  9  Leigh,  119;  s.  c,  33  Am.  Dec.  227;  Barrett  v.  Garney, 
33  Cal.  530;  Driggs  v.  Abbott,  27  Vt.  581;  s.  c,  65  Am.  Dec.  214;  Bur- 
dett  V.  Silsbee,  15  Tex.  615;  Monell  v.  Denuison,  17  How.  Pr.  422; 
Abbott  V.  Coburn,  28  Vt.  663;  s.  c,  67  Am.  Dec.  735;  Karborg  v.  Ham- 
mond, 2  H.  &  G.  42.  See  also  Riley  v.  McCord,  24  Mo.  265;  Wight  v. 
Wallbaum,  39  111.  554. 

2  Cooper  V.  Reynolds,  10  Wall.  308;  Galpin  v.  Page,  1  Cent.  L.  J.  491 ; 
1  Sawy.  309;  18  Wall.  350;  Freeman  on  Judgments,  sees.  606  and  611. 

12 


VOID    JUDICIAL    SALES.  §   7 

assailed.^  AVheu  letters  testamentary  or  of  administration 
on  the  estate  of  a  deceased  person,  or  of  guardianship  upon 
the  person  or  estate  of  a  lunatic  or  minor,  are  applied  for, 
such  measures  as  the  statutes  require  must  be  taken  for  the 
purpose  of  obtaining  jurisdiction  over  the  persons  inter- 
ested. The  statute  may  authorize  the  court  to  proceed 
without  notice  to  any  one.  The  proceeding  may  heiiirevi. 
But  if  notice  is  exacted  by  the  statute,  either  by  publica- 
tion, or  by  the  personal  service  of  a  citation,  a  substantial 
compliance  with  the  statute  is  a  prerequisite  to  obtaining 
authority  to  proceed. - 

§  6.  Where  the  Judge  is  Disqualified  from  Acting. — 
Sometimes  a  court  has  jurisdiction,  both  over  the  person 
and  the  subject-matter,  but  cannot  proceed  because  the 
judge  thereof  is  disqualified  from  acting  in  the  particular 
case.  If,  however,  he  proceeds,  when  incompetent  by 
statute,  his  judgment  or  order  is,  in  most  States,  invalid. 
For  the  purpose  of  trying  or  determining  the  particular 
matter,  he  is  not  a  judge. ^ 

§  7.  Suspension  or  tioss  of  Jurisdiction. — A  court  or 
judge  having  authority  to  proceed  at  one  time  may  be  di- 
vested of  jurisdiction,  either  temporarily  or  permanently. 
The  court  may  be  abolished,  or  its  jurisdiction  may  be  di- 
vested by  statute.  The  proceedings  may  be  removed  into 
some  appellate  tribunal.  The  term  of  the  court  may  be 
adjourned  sine  die;  in  which  case  no  judgment  can  be  en- 
tered before  the  re-opening  of  the  court  at  its  next  term, 
unless  expressly  authorized  by  statute.  In  all  cases  where 
a  court  is  rendered  incompetent  to  proceed,  its  proceedings 


1  Freeman  on  Judgments,  sec.  126;  Hanks  v.  Neal,  44  Miss.  224; 
Staiiipley  v.  King,  51  Miss.  738. 

2  Randolph  v.  Bayue,  44  Cal.  370;  Becltett  v.  Selover,  7  Cal.  215;  s.  c, 
68  Am.  Dec.  267. 

3  Freeman  on  judgments,  se(!.145;  Keeler  v.  Stead,  56  Conn.  501;  S.  c, 
7  Am.  St.  R.— 320;  Sigourney  v.  Sibley,  21  Pick.  101;  s.  c,  32  Am.  Dec. 
248;  Coffin  v.  Cottle,  0  Pick.  287;  Hall  v.  Thayer,  105  Mass.  219;  s.  C.,7 
Am.  Rep.  .513;  Gay  v.  Miuot,  3  Cush.  352. 

13 


§    7  VOID    JUDICIAL    SALES. 

during  such  incompetency  are  as  invalid  as  though  it  had 
never  possessed  jurisdiction.^  If  a  probate  court  appoints 
an  executor  or  administrator,  it  cannot,  while  he  continues 
in  office,  appoint  another.  Its  jurisdiction  is  exhausted. 
Its  further  grant  of  letters  is  void.^  Neither  can  it  appoint 
another  administrator  after  an  estate  has  been  fully  admin- 
istered upon  and  distributed  to  the  heirs. ^  Where  a  stat- 
ute forbade  the  administration  upon  the  estates  of  persons 
who  had  been  dead  for  more  than  twenty  years,  a  grant  of 
administration  in  defiance  of  the  statute  was  adjudged 
void.^  If  notice  is  given  that  a  petition  for  the  sale  of 
lands  will  be  presented  at  a  time  specified,  and  it  is  not 
then  presented,  the  person  interested  in  opposing  it  may  re- 
gard it  as  abandoned.  The  court  has  no  authority  to  hear 
it  without  giving  a  new  notice.^  But  if  the  failure  to  pre- 
sent the  application  arises  from  the  fact  that  the  term  of 
court  is  not  opened,  no  presumption  of  abandonment  can 
be  indulged.  The  petition  may,  it  has  been  held,  be  pre- 
sented at  the  next  term  without  any  new  notice.^ 

The  complete  exercise  of  jurisdiction  over  a  subject- 
matter  may  exhaust  the  jurisdiction,  not  only  of  the  court 
so  exercising  it,  but  of  another  court  possessing  concurrent 
jurisdiction  over  the  same  subject-matter.  Thus,  if  in  the 
progress  of  the  administration  of  an  estate  in  the  probate 
court  of  a  county,  certain  lands  of  a  decedent  are  author- 
ized to  be,  and  are  sold,  the  sale  confirmed,  and  a  convey- 
ance made  to  the  purchaser,  the  jurisdiction  of  the  court 
over  such  lands  is  clearly  exhausted.  They  become  the 
property  of  the   purchaser,  and  cannot  again  be  subject  to 

1  Freeman  on  Judgments,  sec.  121. 

2  Griffith  V.  Frazier,  8  Cranch,  9;  Flinn  v.  Chase,  4  Den.  90. 

3  Fisk  V.  Norvel,  9  Tex.  13;  s.  C,  58  Am.  Dec.  128. 

4  Wales  V.  Willard,  2  Mass.  120. 

5  Turney  v.  Turney,  24  111.  625;  Gibson  v.  Koll,  30  111.  172 ;  s.  C,  83  Am. 
Dec.  181 ;  Morris  v.  Hogle,  37  111.  150;  s.  c,  87  Am.  Dec.  243.  See  also 
Freeman  on  Judgments,  sec.  526. 

6  Hanks  v.  Neal,  44  Miss.  224. 

14 


VOID    JUDICIAL    SALES.  §  8 

administration  during  the  continuance  of  his  life  and  owner- 
ship.  If  the  district  court  of  the  county  also  possesses  pro- 
bate jurisdiction,  and  subsequenly  assumes  authority  over 
the  estate  of  the  same  decedent,  and  orders  the  same  lands  to 
be  sold,  and  they  are  in  fact  sold  to  a  purchaser  havino;  no 
knowledge  of  the  former  proceedings,  such  sale  is  void, 
because  the  former  sale  completely  exhausted  all  i)robate 
jurisdiction  over  the  lands,  and  the  latter  sale  was  a  mere 
unauthorized  assumption  of  authority  over  the  property  of 
a  living  person.^ 

The  court  may,  without  exhausting  its  jurisdiction,  prac- 
tically abdicate  it  and  thus  lose  authority  to  pronounce  a 
valid  jiidgment.  The  instances  where  this  will  occur  must 
be  exceedingly  rare.  In  Windsor  v.  ^IcVeigh,^  the  record 
disclosed  that  after  due  service  of  process,  and  an  appear- 
ance by  defendant  in  response  to  such  service,  his  appear- 
ance and  answer  were  stricken  from  the  files,  and  a  decree 
entered  against  him.  It  was  held  that  this  action  of  the 
court  was  equivalent  to  recalling  its  process,  and,  therefore, 
to  a  condemnation  without  any  opportunity  to  be  heard; 
and  that,  the  decree  was  therefore  coram  non  judice  and 
void. 

§  8.  General  Principles  Governing  Jurisdictional  In- 
quiries.— In  attemping  to  decide  whether  a  judicial,  exe- 
cution, or  probate  sale  can  be  avoided  on  the  ground  that 
the  court  entering  the  judgment  or  order  of  sale  did  not 
have  jurisdiction  over  the  person  of  the  defendant,  the 
first  inquiry  will  be  to  ascertain  whether  the  court  was  a 
court  of  general  jurisdiction,  or  a  court  of  special  or  lim- 
ited jurisdiction,  or,  in  other  words,  whether  it  is  a  court 
of  record  or  one  not  of  record.  This  inquiry  must  be  con- 
ducted chiefly  in  the  statutes  of  the  State.  If  the  court  is 
a  court  of  record,  this  jurisdictional  question  can,  in  most 
States,  be  decided  with  comparative  ease.     Courts  of  record 

1  Lindsay  v.  Juffray,  r,.j  Tox.  02G;  Smith  v.  Woolfolk,  11.")  U.  S.  It:?. 

2  93  U.  S.  274. 

15 


§   8  VOID    JUDICIAL    SALES. 

are  presumed  to  act  correctly.  When  a  court  of  record  has 
entered  judgment,  its  jurisdiction  over  the  defendant  is 
presumed,  unless  its  record  shows  the  contrary.^  If,  how- 
ever, the  record  shows  what  w^as  done  toward  acquiring 
jurisdiction,  nothing  else  will  be  presumed  to  have  been 
done. 2  An  apparent  exception  to  this  rule  is  where  the  re- 
turn on  the  summons  discloses  an  insufficient  or  void  service, 
and  the  judgment  or  decree  contains  recitals  or  findings  in 
favor  of  the  jurisdiction  of  the  court.  In  this  case  the  re- 
cital or  finding  prevails.  The  court  is  presumed  to  have 
had  other  evidence  than  that  contained  in  the  return  on  the 
summons.^  If  the  record  states  that  tbe  court  acquired 
jurisdiction  of  the  defendant,  or  even  if  it  is  silent  on  that 
subject,  jurisdiction  will  always  be  presumed.*  In  most 
States  the  presumption  is  conclusive,  but  in  some  a  collat- 
eral attack  may  be  made  ;  and  if,  from  such  attack,  it  ap- 
pears that  the  defendant  was  never  brought  before  the 
court,  the  judgment  will  be  held  void.^  In  a  majority  of 
the  States,  if  the  proceeding  is  under  some  special  statute 
and  in  derogation  of  the  common  law,  the  jurisdictional 
presumptions  in  favor  of  a  court  of  record  are  not  indulged. 
The  inquiry  must  be  conducted  as  though  the  court  were 
not  a  court  of  record.^  If  the  court  is  one  not  of  record, 
great  care  must  be  taken  to  ascertain  that  every  act  essential 
to  jurisdiction  has  been  performed,'^  and  performed  in  a 
proper  manner."^  No  presumptions  are  indulged  in  favor 
of  the  jurisdiction  of  a  court  not  of  record.  Its  jurisdic- 
tion must   always    appear    affirmatively.^      According    to 


1  Freeman  on  Judgments,  sec.  124. 

2  lb.,  see.  125;   Moore  v.  Starks,  1   Ohio   St.  372;    Benson  v.  Cilley,  8 
OhioSt.  613. 

3  Freeman  on  Judgments,  sec.  130. 
*  lb.,  sees.  131,  132,  134. 

« lb.,  sec.  133. 

6  lb.,  sees.  123,  127. 

7  lb.,  sec.  517. 
**  lb.,  sec.  a'il, 

3  lb.,  sees.  517,  527. 

16 


VOID    JUDICIAL    SALES.  §   8 

man}'  of  the  authorities  it  must  appear  from  the  papers, 
tiles  and  proceedings  in  the  case.^  On  the  other  hand,  the 
fact  that  these  show  jurisdiction  is  not  conclusive.  They 
are  not  records  importing  absolute  verit}'.  They  may  be 
contradicted.^  The  courts  having  the  administration  of  the 
estates  of  the  deceased  or  of  incompetent  persons  are,  in 
some  States,  of  general,  and  in  others  of  limited  or  special 
jurisdiction.  Probabl}',  in  the  majority  of  the  States,  they 
are  of  the  latter  chiss.  Where  this  is  the  case,  he  who 
claims  title  under  these  courts  must  show  affirmatively  (and 
generally  from  their  records  and  files)  the  taking  of  every 
step  essential  to  jurisdiction.^  Nothing  will  be  presumed 
in  his  favor.  But  in  several  of  the  States  these  courts  are 
either  courts  of  record,  or  are,  by  statute,  placed  on  the 
same  footing  as  courts  of  record,  with  reference  to  juris- 
diction, and  are  presumed  to  have  acquired  jurisdiction 
over  all  parties  in  interest,  except  where  their  records  and 
proceedings  indicate  the  contrary.* 

The  presumption  in  favor  of  jurisdiction  may  go  further 
than  merely  rendering  unnecessary  the  proof  of  the  service 
of  notice  or  of  process.  An  inspection  of  the  papers  re- 
maining among  the  files  of  the  court  may  not  be  rewarded 
by  the  discovery  of  any  petition  for  the  sale,  or  may  dis- 
close the  fact  that  some  other  essential  writing  is  not  to  be 
found.  Where  the  court  is  deemed  to  be  one  of  general 
jurisdiction,  the  presumption  is  indulged  that  the  missing 
document  originally  existed   and  was  sufficient  in  form,  and 

1  lb.,  sec.  .518. 

2  lb.,  sec.  .517. 

3  Gwin  V.  McCarroll,  1  S.  &  M.  351;  Rigney  v.  Coles,  6  Bosw.  479; 
Fell  V.  Young,  63  111.  lOG;  Taylor  v.  Walker,  1  Heisk.  734;  Gibbs  v. 
Shaw,  17  Wis.  201 ;  s.  c,  S4  Am.  Dec.  737 ;  Root  v.  McFerriu,  37  Miss.  17; 
s.  c,  75  Am.  Dec.  49. 

*  Doe  V.  Bowen,  8  Ind.  197;  s.  c,  65  Am.  Dec.  758;  Genard  v.  John- 
son, 12  Ind.  030;  Doe  v.  Harvey,  3  Ind.  104;  Spaulding  v.  Baldwin,  31 
Ind.  370;  Valle  v.  Fleming,  19  Mo.  454;  s.  C,  01  Am.  Dec.  .500;  Tucker 
V.  Harris,  13  Ga.  1  ;  s.  c,  .58  Am.  Dec,  488;  Brown  v.  Redwyu,  16  Ga. 
7G;  Wood  v.  Crawford,  18  Ga.  526;  Davie  v.  McDaniel,  47  Ga.  200; 
•Tones  v.  Edwards,  78  Ky.  G. 

17 


§    9  VOID    JUDICIAL    SALES. 

that  it  has  been  lost  from  the  files. ^  If  a  long  period  has 
elapsed  between  the  date  of  a  judicial  or  execution  sale  and 
the  time  when  its  validity  is  questioned,  the  presumption 
that  the  court  and  its  officers  did  their  duty  is  usually  in- 
dulf^ed,  and  the  sale  is  upheld  notwithstanding  there  is  no 
direct  or  positive  evidence  of  the  existence  of  certain  acts 
prescribed  by  law.'^ 


ORDERS  OF  SALE  IN  PROBATE,  AND  HOW    AUTHORITY  TO  MAKE 

MUST  BE  OBTAINED. 

§  y.  Probate  Sales  without  License  of  the  Court;  when 
Valid  and  when  Void. — In  execution  and  chancery  sales, 
jurisdictional  inquiries  need  to  be  prosecuted  with  much  less 
care  and  frequency  than  in  the  consideration  of  sales  made 
by  executors,  administrators  or  guardians.  In  a  suit  in 
equity,  or  an  action  at  law,  if  the  complaint  discloses  a 
cause  which  the  court  was  competent  to  entertain  and  de- 
cide, and  the  record  shows  that  jurisdiction  was  obtained 
over  the  persons  of  the  defendants,  it  is  i^enerally  safe  to 
forego  all  further  jurisdictional  inquiries.  But  in  probate 
proceedings,  jurisdictional  inquiries  are  material  at  almost 
every  stage,  and  to  be  inattentive  to  them  is  to  be  guilty 
of  rash  imprudence.  The  application  for  letters  testa- 
mentary, or  of  administration,  the  citation  to  the  parties  in 
interest,  the  hearing  of  the  proofs  and  the  order  made 
thereon,  correspond  substantially  to  the  complaint,  the  issue 
and  service  of  process,  and  the  trial  and  judgment  at  law. 
But  here  the  case  at  law  ends,  while  the  case  in  probate  is 
but  scarcely  commenced.     What  makes  the    probate    pro- 

1  Doolittle  V.  Holton,  28  Vt.  819;  s.  c,  67  Am.  Dec.  745;  Hurley  v. 
Barnard,  48  Tex.  83;  Alexander's  Heirs  v.  Maverick,  18  Tex.  179;  s.  C, 
67  Am.  Dec.  693. 

2  Seward  v.  Dideen,  16  ISTeb.  58;  s.  C,  20  N.  W.  Rep.  12;  Whitman  v. 
Fisher,  74  111.  147;  Stevenson's  Heirs  v.  McReary,  18  S.  &  M.  9;  S.  c, 
51  Am.  Dec.  102. 

18 


VOID    JUDICIAL    SALES.  §   9 

ceecling  still  more  perilous  is,  that  a  clear  case  of  jurisdic- 
tion at  this  stage  is  not  sufficient  to  support  subsequent  pro- 
ceedings tending  to  divest  the  title  of  the  heirs.  At  each 
subsequent  stage,  where  the  interest  of  the  heir  is  sought 
to  be  affected,  petitions  and  citations  are  usually  exacted  ; 
and,  in  most  courts,  are  treated  as  being  jurisdictional  in 
their  nature.  In  some  circumstances  an  executor,  admin- 
istrator, or  guardian,  may  sell  property  without  obtaining 
leave  from  the  court.  Where  the  statute  has  not  adopted 
a  different  rule,  "  the  whole  personal  estate  of  the  testator 
or  intestate  rests  in  his  executor  or  administrator;"^  and 
"  an  executor  or  an  administrator  has  an  absolute  power  of 
disposal  over  the  whole  personal  effects  of  the  testator  or 
intestate,  and  they  cannot  be  followed  by  creditors,  much 
less  by  legatees,  either  general  or  special,  into  the  hands  of 
an  alienee.  The  principle  is,  that  the  executor  or  adminis- 
trator, in  many  instances,  must  sell  in  order  to  perform  his 
duty  in  paying  debts,  etc.,  and  no  one  would  deal  with  him 
if  liable  afterwards  to  be  called  to  an  account."-  Where 
the  common  law  rules  upon  the  subject  still  prevail,  a  guard- 
ian, though  not  vested  with  any  estate  in  the  personal 
property  of  his  ward,  has  an  ample  power  of  disposition 
over  it.  "Though  it  be  not  in  the  ordinary  course  of  the 
guardian's  administration  to  sell  the  personal  property  of 
his  ward,  yet  he  has  the  legal  right  to  do  it,  for  it  is 
entirely  under  his  control  and  management,  and  he  is  not 
obliged  to  ai)ply  to  court  for  direction  in  every  particular 

1  Lomax  on  Executors  (2d  ed.),  3G7;  Goodwin  v.  Jones,  3  Mass.  518; 
s.  C,  3  Am.  Dec.  173;  Hayes  v.  Jackson,  (>  Mass.  152;  Sneed  v.  Hooper, 
Cooke,  200;  s.  C,  5  Am.  Dec.  G91;  Petrie  v.  Clark,  11  S  &  R.377;  s.  C, 
14  Am.  Eec.  630,  and  note. 

2  Lomax  on  Executors  (2d  ed.),  5G0;  Peterson  v.  Chemical  Rank,  32 
N.  Y.  21 ;  s.  c,  88  Am.  Dec.  2'J8 ;  Overlield  v.  Bullitt,  1  Mo.  74'J ;  Williamson 
V.  Branch  Bank,  7  Ala.  90G;  Bland  v.  Muncaster,  24  Miss.  62;  s.  c.  ,67 
Am.  Dec.  162;  Nugent  v.  Gifford,  1  Atk.  403,  An  administrator  nuvy  sell, 
without  an   order  of  court,  a  term   of  90!)   years,  for  that  is   jicrsonalty 

(Petition  of  Gay,  5  Mass.  419) ;  but  not  the  estate  of  a  mortgagee,  fur 
that  is  realty.    Ex  parte  Blair,  13  Met.  126. 

19 


§   9  VOID    JUDICIAL    SALES. 

case.     The  question  as  to  the  due  exercise  of  the  power 
arises  between  the  guardian  and  his  ward;   and  I  apprehend 
that  no  doubt  can  be  entertained  as  to  the  competency  of 
the  guardian's  power  over  the  disposition  of  the  personal 
estate,  including  the  choses  in  action,  as  between  him  and 
a  bona  fide  purchaser."  ^     So  an  executor  might,  at  common 
law,  and  may,  under  the  statutes  of  most  of  our  States,  sell 
real  estate  devised  to  him  by  the  testator,  or  over  which  the 
will  gives  him  a  power  of  sale.^     Nor  need  this  power  of 
sale   be   conferred  in   express  terms.     It  must  be  inferred 
when  the  testator  directs  his  real  estate  to  be  sold,  without 
declaring  by  whom  the  sale  shall  be  made,  that  he  intended 
the  power  to  be  exercised  by  his  executor,  if  the  proceeds 
of  the  sale  are  by  the  provisions  of  the  will  or  by  the  rules 
of  law  to  be  distributed  or  paid  out  by  such  executor.'^     The 
power  of  a  testator  to  authorize  his  executor  to  sell  his  real 
or  personal  estate  without  applying  to  court  for  permission 
is  generally  conceded,  though  in   some  of  the   States  such 
sales  must  be  reported  to  and  approved  by  the  court.-^     The 
nomination  of  certain  persons  as  executors,  and  investing 
them  with  power  to  sell  the  testator's   real  estate  at  their 
discretion,  and  without   any  license   from  the  court,  indi- 
cates that  the  testator  has  unusual  confidence  in  the  fidelity 
and  sagacity  of  the  persons  so  nominated  and  empowered. 
This  unusual  and  somewhat   irresponsible  authority  may, 
in  the  judgment  of  the  testator,  be  safely  and  even   advan- 

1  Field  V.  Schieffelin,  7  Johns.  Ch.  153;  S.  C,  11  Am.  Dec.  441;  Tuttle 
V.  Heavy,  50  Barb.  334;  Tyler  on  Infancy  and  Coverture,  261-2;  Thomp- 
son v.  Boardman,  1  Vt.  367;  s.  C,  18  Am.  Dec.  684;  Truss  v.  Old,  6 
Kand.  556;  s.  C,  18  Am.  Dec.  784. 

2 1  Lomax  on  Executors  (2d  ed.),  384,  402,  560,  and  authorities  in  the 
next  two  citations. 

3  Davis  V.  Hoover,  112  Ind.  423;  Rankin  v.  Rankin,  36  111.  293;  s.  C, 
87  Am.  Dec.  205,  and  note. 

4  Delaney's  Estate,  49  Cal.  77;  Jackson  v.  Williams,  50  Ga.  553;  Dur- 
ham's Estate,  49  Cal.  491 ;  Crusoe  v.  Butler,   36  Miss.  170;  Bartlett  v. 
Sutherland,  24  Miss.  395;  Going  v.   Emery,  16  Pick.  107;  s.  C,  26  Am. 
Dec.  645;  Payne  v.  Payne,  18  Cal.   291;  Larco  v.   Casaneuava,  30  Cal 
567;  Cal.  Code  C.  P.,  sec.  1561. 

20 


VOID    JUDICIAL    SALES.  §   9 

tageously  couferred  on  the  executors  named  in  the  will,  but 
it  is  huidl}"  probable  that  he  would  wish  to  see  any  other 
persons  invested  v,ith  it.  Hence,  where  persons  named  as 
executors  and  invested  with  powers  of  sale  have  declined, 
or  been  unable  to  act,  it  has  been  held  that  the  special  con- 
fidence reposed  in  them  by  the  will  could  not  be  vested  in 
any  other  pei-son,  and  that  the  administrator  with  the  will 
annexed  had  no  power  to  makQ  sales,  except  by  permission 
of  the  court. ^  That,  in  some  cases,  a  power  of  sale,  vested 
by  the  will  in  an  executor,  does  not,  in  the  event  of  his 
death,  resignation  or  failure  to  qualify,  vest  in  the  admin- 
istrator with  the  will  annexed  is  established  by  a  very 
decided  preponderance  of  the  authorities,  and  is,  perhaps, 
not  necessarily  inconsistent  with  any  of  the  cases.  If  the 
executor  is  merely  invested  with  a  discretion  to  sell  if  he 
thinks  best  so  to  do,  this  discretionary  power  cannot  be  ex- 
ercised by  an  administrator  w'ith  the  will  annexed.^  If,  on 
the  other  baud,  executors  are  directed  to  sell,  so  that  it 
would  be  impossible  to  accomplish  the  designs  of  their  tes- 
tator otherwise  than  by  a  sale,  it  is  quite  clear  that  he  did 
not  choose  them  for  the  purpose  of  having  the  benefit  of 
their  judgment  in  determining  whether  or  not  there  should 
be  any  sale;  and  there  seems  to  be  no  reason  why  his 
direction  to  sell  may  not  be  executed  by  part  of  his  execu- 
tors, if  some  of  them  fail  to  qualify,  or,  after  qualifying, 
from  any  cause  become  imcompetent  to  act,^  or  by  an 
administrator  with  the  will  annexed,  in  case  all  the  execu- 
tors should   resign  or    become    disqualified    or    unable    to 

1  Tippett  V.  Mize,  30  Tex.  361;  s.  c,  94  Am.  Dec.  314;  Brown  v.  Ilob- 
son,  3  A.  K.  Marsh.  3S0;  s.  c,  13  Am.  Dec.  187;  Lockwood  v.  Stradley, 
1  Del.  Ch.  298;  s.  C,  12  Am.  Dec.  97;  Conklin  v.  Edgertou,  21  Weud. 
430;  Dunning  v.  Ocean  Xafl  Bank,  01  X.  Y.  497;  s.  c.,19Ani.  Rep.  293; 
Cooke  V.  Piatt,  98  X.  Y.  35. 

2  See  authorities  in  preceding  citation. 

3  Taylor  v.  Galloway,  1  Ohio,  232;  s.  C,  13  Ain.  Dec.  GO.");  Zebach  v. 
Smith,  3  Bin.  09;  s.  c,  5  Am.  Dec.  3.")2;  Marr  v.  Peay,  2  Murpb.  84; 
s.  c,  5  Am.  Dec.  521;  Xelson  v.  Oarrington,  4  Munf.  332;  s.  c,  G  Am. 
Dec.  519. 

21 


§    10  VOID    JUDICIAL    SALES." 

act.i  Except  where  authorized  to  do  so  by  ii  will,  or  by  some 
statute,  neither  an  administrator,  aji  executor,  nor  a  guard- 
ian can  sell  real  estate  without  a  license  or  order  of  sale 
from  the  court.  A  sale  made  without  such  license  or  order 
of  court  is  not  a  mere  error  or  irregularity  which  must  be 
objected  to  by  some  proceeding  in  the  court  where  the 
license  ought  to  have  been  sought  and  granted;  and,  which, 
if  not  so  objected  to,  is  waived  or  ratified.  It  is  a  pro- 
ceeding without  any  legal  support.  A  conveyance  made  in 
pursuance  of  it  has  no  force  whatever.  It  may  be  shown 
to  be  void  when  collaterally  attacked.  In  fact,  no  attack, 
collateral  or  otherwise,  need  be  made.^  The  claimant  under 
the  sale  could  not  show  a  prima  facie  case.  In  many  of 
the  States  the  power  of  guardians,  executors  and  adminis- 
trators over  personal  property  does  not  extend  to  its  trans- 
fer without  leave  of  the  court.  An  attempted  transfer 
made  without  such  leave  is,  in  such  States,  void.^ 

§  10.  Petition  for  Order  of  Sale  must  be  by  a  Person 
Competent  to  Present  it. — We  now  pass  to  the  most 
numerous  class  of  probate  sales — those  which  must  be 
sanctioned  by  a  pre-existing  order  of  court.  This  order 
must,  in  turn,  be  supported  by  certain  pre-existing  facts.     In 

1  Peebles  v.  Watts'  Admr.,  9  Dana,  103 ;  s.  C,  33  Am.  Dec.  531 ;  Kidwell 
V.  Bruminagim,  32  Cal.  438;  Steele's  Ex.  v.  Moxley,  9  Dana,  139;  Gulley 
V.  Piather,  7  Bush,  167;  Gaines  v.  Fenter,  82  Mo.  497;  Bailey  v.  Brown, 
9  K.I.  79;  Brown  v.  Arraistead,  6  Kand.  594;  Evans  v.  Chew,  71  Pa.  St. 
47;  Mott  V.  Ackerman,  92  N.  Y.  539;  Sandifer  v.  Grantham,  62  Miss.  412. 

2  Tippett  V.  Mize.  30  Tex.  361;  Beard  v.  Kowan,  1  McLean,  135;  Kob- 
iuson  V.  Martel,  11  Tex.  149;  Low  v.  Purdj%  2  Lans.  422;  Anderson  v. 
Turner,  3  A.  K.  Marsh.  131;  French  v.  Currier,  47  N.  H.  88;  Hite  v. 
Taylor,  3  A.  K.  Marsh.  353;  Goforth  v.  Longworth,  4  Ohio,  129;  s.  c,  19 
Am.  Dec.  .588;  Jackson  v.  Todd,  1  Dutch.  121 ;  Gelstrop  v.  Moore,  26 
Miss.  206;  s.  C,  59  Am.  Dec.  254;  Bell's  Appeal,  66  Pa.  St.  498;  Evans 
v.  Snyder,  64  Mo.  516;  Walbridge  v.  Day,  31  111.  379;  s.  C,  83  Am.  Dec. 
227. 

3  Kendall  v.  Miller,  9  Cal.  591;  De  La  Montaguie  v.  Union  Ins.  Co., 
42  Cal.  291 ;  Wells  v.  Chaffin,  60  Ga.  677.  Where  there  is  a  valid  order 
of  sale,  the  sale  of  any  parcel  of  land,  in  addition  to  the  lands  described 
in  such  order,  is  without  any  authority  of  law,  and  is,  therefore,  abso- 
lutely void.     Burbauk  v.  Semmes,  99  U.  S.  138. 

22 


VOID    JUDICIAL    8ALES.  §    10 

truth,  the  order  of  sale  bears  more  resemblance  to  a  judg- 
ment obtained  in  a  new  action,  than  to  an  order  made  in  a 
pre-existing  proceeding  in  which   jurisdiction   has   already 
been  acquired.     To  obtain  an  order   of  sale,  a   petition  or 
comphiint  must  be  filed,  a  citation  or  notice  must  be  issued 
and  served,  and  a  complete  adversary  proceeding  conducted. 
Any  jurisdictional  defects  in  this  proceeding  are  as  fatal  as 
if    connected    with    the   original  srant   of  administration. 
And,  what  is  worse,  defects  which,  in  actions  at  law,  would 
be  treated   as   mere  errors,   are,    in  probate   proceedings, 
counted  as  incurable  jurisdictional   infirmities.     If  a   com- 
plaint in  an  action  at  law,  or  in  a  suit  in   equit}',  does   not 
state  facts  sufficient   to   entitle   the   complainant  to  relief, 
its  deficiency  must  be  pointed  out,  or  a  judgment  or  decree 
is  likely  to  be  entered,  which,  though  reversable  on  appeal, 
is  valid  until  so  reversed.     If  the  complaint  were  filed   by 
some  one  having  no  capacity  to  maintain  the  suit  or  action, 
that  incapacity  would  be  called  to  the  attention  of  the  court 
in  some   manner:   or,  if  that   were  not  done,  a   judgment 
would  probably  be  entered  in   favor  of  plaintiff,  and  this 
judgment  would  not  be  void.       But  the   presentation  of  a 
petition  in  probate  by  a  person  authorized  to  so  petition,  is 
a  jurisdictional  fact.     If  it  be  presented  by  some  one   not 
qualified  to  present  it,  there   is  no  jurisdiction — no  power 
to  hear  and  determine  it.     If  the  court  erroneously   grants 
the  prayer  of  the  petition,  there   need  be   no  appeal — the 
order  is  void  and  cannot  support  a  sale.^     In  the  case  of 
two  or  more  acting  executors  or  administrators,  a  petition 
for  an  order  of  sale,  preferred  by  any  less  than  the  whole, 
is  irregular,  but  probably  is  not  so  worthless  that  the  court 
can  base  no  valid  action  upon  it.-     If  the   petition   is  by  a 
person  acting  as  administrator,  but  who  has  never  qualified 

1  Miller  v.  Miller,  10  Tex.  319;  Washington  v.McCaughan,34  Miss.  304. 

2  Fitch  V.  Witbeck,  2  Barb.  Ch.  IGl ;   Gregory   v.  McPherson,  13  Cal. 
578;  Downing  v.  Riigar,  21  Wend.  178;   s.  c,  34  Am.  Dec.  223.     See,  as 

I     sustaining  petitions  by  one  administrator  only,  Jackson  v.  Robinson,  4 
Wend.  437;  De  Bardelaben  v.  Stoudenmire,  48  Ala.  G43. 

23  (  3  ) 


§    11  VOID    JUDICIAL    SALES. 

as  such,^  or  is  a  special  administrator  not  authorized  by  law 
to  present  the  petition  or  make  the  sale,^  or  it  appears 
from  the  whole  record  of  the  probate  proceedings  that  his 
appointment  was  illegal,  then  the  license  and  the  sale  based 
thereon  are  both  void.^ 

The  authority  of  a  guardian  or  administrator  is  confined 
to  the  State  by  whose  courts  he  was  appointed.  Hence,  he 
cannot  be  authorized  to  sell  property  situate  in  another 
State.*  A  sale  made  by  a  foreign  guardian,  or  by  a  parent 
in  his  capacity  of  natural  guardian,'^  or  by  one  who  falsely 
represents  himself  to  be  a  guardian,^  or  by  one  who  has 
ceased  to  be  a  guardian,^  is  void.  If  the  statute  requires  the 
application  for  a  guardian's  sale  to  be  filed  in  the  county  in 
which  the  ward  resides,  or  in  case  he  resides  out  of  the 
State,  then  in  the  county  in  which  the  land  sought  to  be 
sold  lies,  the  filing  in  the  proper  county  has  been  held  to 
be  jurisdictional,  and,  therefore,  a  prerequisite  to  a  valid 
order  of  sale.'^ 

§  11.  There  must  be  a  Sufficient  Petition  for  License 
to  Sell — What  Petitions  are  Insufficient. — As,  in  an  action 
at  law,  the  declaration  should  aver  the  facts  entitling  the 
plaintiff  to  judgment,  so  in  a  petition  in  probate,  for 
authority  to  sell  property,  the  matters  necessary  to  justify 
the  sale  must  be  set  forth.  In  truth,  this  necessity  seems 
to  be  more  imperative  in  the  case  of  the  petition  than  in 
that  of  the  declaration.     The  judgment  of  a  court  of  law 

1  Pryor  v.  Downey,  50  Cal.  389;  s.  c,  19  Am.  Rep.  G50. 

2  Long  V.  Burnett,  13  la.  28;  s.  c,  81  Am.  Dec.  410. 

3  Frederick  v.  Pacquette,  19  Wis.  541;  Sitzman  v.  Pacquette,  13  Wis. 
291;  Chase  v.  Ross,  36  Wis.  267;  Sumner  v.  Parker,  7  Mass.  79;  Withers 
V.Patterson,  27  Tex.  501;  s.  c,  86  Am.  Dec.  643;  Ex  parte  Barker,  2 
Leigh,  719;  Miller  v.  Jones,  26  Ala.  247;  Allen  v.  Kellam,  69  Ala.  442. 
See  ante,  sec.  2. 

4  McAnulty  v.  McClay,  16  Xeb.  418;  s.  c,  19  N.  W.  Rep.  266. 
-  McNeil  V.  F.  C.  S.,  4  W.  C.  Rep.  421 ;  s.  c,  66  Cal.  105. 

'•  Grier's  Appeal,  101  Pa.  St.  412. 
'  Phelps  V.  Buck,  40  Ark.  219. 
**  Spellman  v.  Dow,  79  111.  66. 

24 


VOID    .JUDICIAL    SALES.  §    11 

can  rarely,  if  ever,  be  treated  as  void,  because  pronounced 
upon  an  insufficient  complaint.     An  order  in  probate  must 
be  supported  by  a  petition  sufficient  in  substance  to  show  a 
leofal  cause  for  the  order.     A  license  to  sell,  granted  without 
any  petition  therefor,  is  void.^     But  a  mere  petition  is  not 
enouijh.     The  statutes  of  each  State  designate   the  contin- 
gencies  in  which  the  real  estate  of  a  deceased  or  incompe- 
tent person  may  be  ordered  to  be  sold.     The  probate  courts 
have  no  power  to  license  a  sale  in  the  absence  of  these  con- 
tingencies.    The  statute  prescribes  the  limit  of  the  judicial 
authority.      Action    beyond  this  limit  is  not  irregular  or 
erroneous  merely — it  is  non-judicial.      If  the  causes  of  sale 
designated   b}'   statute  are   too   few,  relief  must  be  sought 
from  the  legislature.     An  order  of  sale  made  to  accomplish 
a  purpose  not  sanctioned  by  statute,  or  based  upon  a  neces- 
sity not  recognized  by  statute,  is,  in  legal  eftect ,  coi'ain  non 
judice.     It  cannot  justify  a  sale  made  in   pursuance  of  its 
directions.'-     The  theory  of  the  law  is,  that   the    probate 
courts  have  no  general  authority  to  dispose  of    an  estate  in 
[)rocess  of  administration;   that  their  power  of  disposition 
is   special  and   limited,   and   that  he   who  relies  upon  the 
power  must  disclose  a  state  of  facts  sufficient  to  call  it  into 
t)eing.     It  is  also  essential  that  the  petition  state  a  sufficient 
cause  of  action.     The  order  of  the  court  is  based  upon  the 
petition,  and  cannot  draw  its  support  from  beyond  the  peti- 

^  Teverbaugh  v.  Hawkins,  82  Mo.  180;  Alabama  Conference  v.  Price, 
42  Ala.  39;  Wj^att's  Adrar.  v.  Rambo,  29  Ala.  510;  s.  C,  G8  Am.  Dec. 
89:  Teverbaugh  v.  Hawkins,  82  Mo.  180;  Etbell  v.  Nichols,  1  Idaho 
(N.  S.),  741 ;  Finch  v.  Edmondson,  9  Tex.  504.  But  in  Withers  v.  Pat- 
terson, 27  Tex.  499 ;  s.  c,  80  Am.  Dec.  043,  and  in  Alexander  v.  Maverick, 
18  Tex.  179;  s.  C,  67  Am.  Dec.  695,  it  was  intimated  that  the  absence  of 
a  petition  might  not  be  fatal,  and  so  decided  in  Ruinrill  v.  St.  A.  Bank, 
28  Minn.  202. 

2  Bompart  v.  Lucas,  21  Mo,  598;  Parrar  v.  Dean,  24  Mo.  16;  Newcomb 
V.  Smith,  5  Ohio,  448;  "Withers  v.  Patterson,  27  Tex.  499;  Strouse  v. 
Dn-nnan,  41  Mo.  298;  Beal  v.  Harmon,  38  Mo.  -135;  IkfHieimcr  v.  Chap- 
man, 32  Ala.  076;  Sanford  v.  Granger,  12  Barb.  392;  Wouihuff  v.  Cook, 
2Edw.  Ch.  259;  Cornwall's  Estate,  1  Tucker,  250;  Hall  v.  Chapman, 
35  Ala.  553. 

25 


11    §  VOID    JUDICIAL    SALES. 

tion,  unless  the  statute  otherwise  provide.     If  the  petition 
states  no  cause  of  sale,  it  would  not  be  competent  to  prove, 
in  support  of  the  sale,  that  the  court  in  fact  received  evi- 
dence of  facts  not  relied  upon  by  the  petition,  and  that  its 
action  was,  in  fact,  induced  by  proof  of  the  causes  of  sale 
omitted  from  the  petition   but    specified    in    the    statute.^ 
Some  of  the  statutes  designate,  in  general   terms,  the  pur- 
poses for  which  a  sale  may  be  licensed,  and  declare  that  the 
application  for  such  license  must  be  in  writing  and  must 
show  the  necessity  for  the  sale.     Other  statutes  enumerate 
with  considerable  particularity  the  matters  to  be  inserted  in 
the  petition.     Even  where  the  statute  does  not  contain  any 
special  enumeration  of  the  matters  to  be  stated,  it  is  evi- 
dent that  a  petition  may  be  fatally  defective:    1st,  when 
it  seeks  an  improper  object;   as,  for  instance,  the  sale  of 
property  for  a  supposed  benefit  to  the  estate,  when   the 
statute  authorizes  a  sale  for  no  such  purpose;     and,   2d, 
when  a  proper  object  is  sought,  but  the  sale  is  not  shown 
to  be  necessary  to  obtain  it,  as  where  a  sale  is  asked  to  pay 
debts,  but  no  debts  are  shown  to  exist,  or  the  deficiency  of 
personal  assets  with  which  to  pay  the  debts  is  not  affirmed. 
"A  long  series   of  decisions  in  this  State — uniformly  hold- 
ing to  the  same  rule — has  determined  that  the  application 
of  an  executor  or  administrator  for  the  sale  of  lands  belong- 
ing to  the  estate  is  a  special  and  independent  proceeding; 
that  the  jurisdiction  of  the  probate  court  depends  absolutely 
on  the   sufficiency  of  the   petition — in  other  words,  on  its 
substantial  compliance  with  the  requirements  of  the  probate 
act.     Though  the  proceeding  for  the  sale    occurs    in    the 
general  course  of  administration,  it  is  a  distinct  proceeding 
in  the  nature  of  an  action,  in  which  the  petition  is  the  com- 
mencement and  the  order  of  sale  is  the  judgment.     The 
necessity  for  a  sale  is  not  a  matter  for  the  administrator  or 
executor  to  determine,  but  is  a  conclusion  which  the  court 
must  draw  from  the  facts  stated,  and  the    petition   must 

1  Pryor  v.  Downey,  50  Cal.  389;  s.  c,  19  Am.  Rep.  656. 

26 


VOID    JUDICIAL    SALES.  §    11 

furnish  materials  for  the  judgment."  ^     The  policy  of  the 
law  has  always  been  in  favor  of  preserving  the  real  estate 
of  heirs.     Hence,  if  any  necessity  arises  for  the  raising  of 
money,  resort  must  first  be  had  to  the  personal  estate  of  the 
heir  or  ward.     It  is  not  probable  that  a  petition  for  the  sale 
of  real  estate  would  give  jurisdiction  to  any  probate  court 
in  the   Union,  if  it  failed  to  show  that  the   personal  estate 
was  either    exhausted   or  was  insufficient  to  produce   the 
requisite  funds.^     By  a  statute  of  New   York,  an  adminis- 
trator, suspecting  the  personal  .estate  of  the  deceased  to  be 
insufficient  to    pay    the    debts,  was  required   to    make  an 
account  of  such  personal  estate  and  deliver  it  to  the  judge 
of  the  court  of  probate,  or  the  surrogate  of  the  county,  and 
request    his    aid    in   the    premises.     Thereupon,  an    order 
issued  to  the    person  interested,  to  show    cause   why    the 
real  estate  should  not  be  sold.     The  account,  being  essen- 
tial to  showing  the  deficiency  of  personal  assets,  was  treated 
as    jurisdictional.     A  sale,  in  its  absence,  was  always  held 
void.^     The  statutes  generally  require  petitions  for  orders 
to  sell  real  estate  to  be  verified.     The  courts,  nevertheless, 
have  declared  that  verification    was  not  a  matter    jurisdic- 
tional in  its  nature;   and,  therefore,  that  its  omission    was 

iPryor  v.  Downey,  oO  Cal.  398;  s.  C,  19  Am.  Rep.  65G;  Wilson  v. 
Armstrong,  42  Ala.  168;  s.  c,  94  Am.  Dec.  635;  Spencer  v.  Jennings,  114 
Pa.  St.  618;  Sermon  v.  Black,  79  Ala.  507;  Wilson  v.  Holt,  83  Ala.  528; 
Haynes  v.  Meeks,  20  Cal.  288;  Gregory  v.  :McPherson.  13  Cal.  562;  Hall 
V.  Chapman,  35  Ala.  553;  .Jackson  v.  Kobinson,  4  Wend.  436;  Fitch  v. 
Miller,  20  Cal.  352.  But  by  section  1518  Code  Civil  Procedure  of  Cali- 
fornia, •'  a  failure  to  set  forth  the  facts  showing  the  sale  to  be  necessary 
will  not  invalidate  the  subsequent  proceedings,  if  the  defect  be  supplied 
by  the  proofs  at  the  hearing,  and  the  general  facts  showing  the  necessity 
be  stated  in  the  order  directing  the  sale."    See  also  sec.  1537,  Cal.  C 

C.  P. 

2  Gregory  v.  Tabor,  19  Cal.  397;  Stuart  v.  Allen,  16  Cal.  473;  s.  c,  76 
Am.  Dec.  551 ;  Wattles  v.  Hyde,  9  Conn.  10. 

3  Bloom  V.  Burdick,  1  Hill,  130;  s.  C,  37  Am.  Dec.  299;  Corwin  v. 
Merritt,  3  Barb.  341;  Ford  v.  Walsworth.  15  AVend.  450;  Jackson  v. 
Crawfords,  12  Wend.  533;  Atkins  v.  Kinnau,  20  Wend.  241;  s.  c,  32 
Am.  Dec.  .534;  Wood  v.  McChesney,  40  Barb.  417.  See  Forbes  v.  Halsey, 

26N.  Y.  .53. 

27 


§    11  VOID    JUDICIAL    SALES. 

not  a  fatal  irref^ubrity.^  In  most  States  the  proceedinors 
for  the  sale  of  real  estate  are  adversary  proceedings.  In  such 
proceedings  parties  defendant,  as  well  as  plaintiff,  are  essen- 
tial. As  the  heirs  occupy  the  position  of  defending  parties, 
the  petition  should  show  who  they  are,  in  order  that  they 
may  be  brought  into  court. ^  The  failure  to  name  them  has 
been  held  fatal. ^  The  petitioner  cannot,  at  the  hearing, 
abandon  the  grounds  stated  in  his  petition  and  obtain  a 
license  to  sell  on  some  other  ground.  A  court  having  juris- 
diction of  a  petition  for  a  sale  to  pay  debts,  cannot  thereon 
grant  a  valid  license  to  sell  to  promote  the  interest  of  the 
heirs.*  The  property  sought  to  be  sold  must  generally  be 
described  in  the  petition.  No  jurisdiction  is  obtained  over 
that  which  is  not  described.  A  license  to  sell  the  whole  of 
the  real  estate  of  a  decedent,  based  on  a  petition  to  sell  a 
part,  is  void.^  But  a  description  will  not  be  inadequate  to 
support  the  order  of  sale,  if  it  is  such  as  would  be  sufficient 
in  a  conveyance,  or  as  is  rendered  intelligible  by  the  aid  of 
of  facts  of  which  the  court  has  judicial  knowledge.^  The 
petition  need  not  state,  in  Missouri,  that  the  property  be- 
longed to  the  decedent.'^  In  Kansas  it  does  not  ap})ear  to  be 
essential  to  particularly  described  the  real  property  of  a 
decedent  in  a    petition   for  its  sale.     It  is  sufficient  in    that 

1  Tiuml)le  V.  Williams,  IS  Xeb.  144;  Hamill  v.  Donnelly.  39  X.  W. 
Rep.  210  (la). 

2  Morris  v.  Hogle,  37  111.  150;  s.  c,  87  Am.  Dec,  243;  Hoard  v.  Hoard, 
14  Ala.  .^90;  Turney  v.  Young,  22  HI.  253. 

^  Guy  V.  Pierson,  21  lud.  IS.  Contra^  that  the  ommission  of  the  names 
of  the  heirs  is  an  irregularity  merely.  Gibson  v.  Roll,  27  HI.  92;  s.  C, 
83  Am.  Dec.  181;  Stow  v.  Kimball,  28  111.  106;  3Iorris  v.  Hogle,  37  111. 
150;  s.  c,  87  Am.  Dec.  243. 

<  Williams  v.  Childress,  25  Miss.  76. 

5  Verry  v.  MoClellau,  6  Gray,  .535;  s.  c,  66  Am.  Dec.  423;  Teuuy  v. 
Poor,  14  Gray,  .502;  s.  c,  77  Am.  Dec.  340. 

^  Smitha  v.  Flournoy,  47  Ala.  345.  "  Southeast  quarter  of  sect.  19,  T. 
12:9,"  is  fatally  defective  as  a  description.  Weed  v.  Edmonds,  4  Ind. 
468.  "  Section  12,  T.  17,  R.  21,"  ^vas  held  sufficient  in  Wright  v.  Ware, 
50  Ala.  .549. 

'  Trent  v.  Trent,  24  Mo.  307. 

28 


VOID    JUDICIAL    SALES.  §    11 

State,  at  least,  when  the  question  arises  collaterally,  that  the 
petition  aver  that  it  is  necessary  to  sell  the  real  estate  and 
name  the  county  in  which  it  is  situate.^    This  decision  is  not, 
in  our  judgment,  sustained  by  the  cases  upon  which  the  court 
appears  to  rely,  and  we  apprehend  it  will  tind  little  favor  in 
any  court  which  regards  itself  as  bound  by  the  general  rule 
that  a  sale  of  real  estate  must  be  supported   by  a  sufticient 
petition.     If  there  is    anything  essential  in   a  petition    or 
complaint,  we  think  it  must  be  a  designation  of  its  subject- 
matter,  in  language  sufficiently  exact  to  enable  a  competent 
person  to  understand  its  location  and  extent.     If  real  prop- 
erty is  described  as  "  the  undivided  one-half  of  a  league  of 
land  on  Clear  Lake,"  or  as  ''  the  undivided  one-half  part  of 
a  farm  and  vineyard  at  Sonoma,  containing  eight  hundred 
and  thirty-three  acres,  more  or  less,"  or  as  "  eighty   acres 
of  land  lying  north  of  Courtland,  and  east  of  the    Lamb's 
Ferry  Road,"  it  is  clear  that  no  person,  from  these  descrip- 
tions   alone,  can    locate  the  tracts  thus  imperfectly    desig- 
nated, and  that  sales  based  on  such    descriptions    must  be 
void.-     Some  of  the  more  recent  cases  exhibit  a  disinclina- 
tion to  enforce  the  general  rule  exacting  a  sufficient  petition 
as  a    prerequisite  to  a  valid  order  of    sale.     The  petitions 
sustained  in  such    cases,  will  generally  be  found    either  to 
be  deficient  in  formal  matters,  while  they  set  forth  inform- 
ally matters  amply  adequate  to  sustain  a  sale,  or  else  to  be 
aided   by  some  statute   which  undertakes  to  limit  the  cases 
in   which  sales  of  the  class  in   question   may   be   adjudged 
void.^     But  it  is  still  requisite  in  most,  if  not  in  all  of   the 
States,  that  the  action  of  the  court  be  based  on  a  sufficient 
petition  ;  and  by  sufficient  petition  we   mean  one  which  at 
least  shows  the  property  intended  to  be  sold,  the  existence 
of    facts    warranting    such  sale  under  the  statutes  of   the 

1  Bryan  v.  Bandor.  23  Kas.  0.5. 

2  WilHon  V.  Hastings,  .")  W.  C.  Rep.  :J1 ;   s.  C,  (id  Cal.  243;   Gilchistv. 
Shackleford,  72  Ala.  7. 

«  MoKeever  v.  Ball,  71  lud.  308;  Worthington  v.  Diiiikiti,  11  iii'l.  ."'i:.; 
MofRt  V.  Motlit.  0!)  111.  (Ill ;  Stanley  v.  Noble,  .")!»  la.  (iOC 

29 


§    12  VOID    JUDICIAL    SALES. 

State,  and  generally  such  other  facts  as  the  statute  directs 
to  be  inserted  in  such  petition,  to  enable  the  court  the 
better  to  judge  of  the  necessity  or  advisability  of  the  sale.^ 
There  are  other  matters  with  respect  to  which  the  provisions 
of  the  statute  have  been  regarded  as  direciory  merely. 
Thus,  though  the  statute  directs  that  the  petition  shall  be 
verified,  the  absence  of  such  verification  has  never  been 
held  fatal.  The  jurisdiction  of  the  court  was  thought  to  be 
called  into  action  by  a  petition  stating  the  requisite  facts, 
and  the  absence  of  verification  was  adjudged  to  be  a  mere 
irregularity.-  An  administrator  or  executor,  in  petitioning 
for  a  sale,  need  not  aver  the  death  of  the  testator  or  intes- 
tate, nor  the  time  or  mode  of  the  petitioner's  appointment; 
but  may  simply,  upon  this  subject,  state  that  he  is  the  exec- 
utor or  administrator,  as  the  case  may  be,  of  the  decedent.^ 
§  12.  Statutes  Designating  what  Petition  for  Order  of 
Sale  must  Contain. — Where  a  statute  enumerates  the  mat- 
ter to  be  contained  in  the  petition  for  the  sale  of  real  estate, 
its  object  is  to  compel  petitioners  to  disclose  the  supposed 
necessity  of  the  sale,  and  also  to  furnish  information  which 
will  aid  the  court  in  determining  upon  the  best  course  of 
action,  in  case  it  finds  a  sale  to  be  necessary.  The  statute 
of  California  exacts  more  than  any  other  which  has  come 
under  our  observation.*  It  requires  a  verified  petition  set- 
ting forth:  1,  the  amount  of  personal  property  that  has 
come  into  the  hands  of  the   administrator,  and   how    much 

1  Boland's  Estate,  57)  Cal.  310;  Wilson  v.  Hastings,  5  W.  C.  Rep.  31; 
s.  C,  G6  Cal.  243;  Rose's  Estate,  63  Cal.  346;  Wright  v.  Edwards,  10 
Oreg.  298;  Hayes  v.  McXealy,  16  Fla.  409;  Ryder  v.  Flanders,  39  Mich. 
336;  Youug  v.  Young,  12  Lea,  335;  Arnett  v.  Bailey,  60  Ala.  435. 

2  Ellsworth  V.  Hall,  48  Mich.  407;  s.  o.,  12  X.  W.  Rep.  512;  Coon  v. 
Fry,  6  Mich.  .506;  Trumble  v.  Williams.  24  X.  W.  Rep.  716;  s.  c,  18 
Xeb.  144;  Johnson  v.  Jones,  2  Xeb.  126;  Williamson  v.  Warren,  55  Miss. 
199. 

s  Moffat  V.  Moffat,  69  HI.  541 ;  Stow  v.  Kimball.  28  111.  93. 

■»  C.  C.  P.  of  Cal.,  sec.  1537.  See  also  llurd's  Stat,  of  111.,  pp.  121, 123 ; 
Dassler's  Stat,  of  Kaus.,  sec.  2027;  Conip  Laws  Mich.  1871.  p.  1424,  sec. 
4446;  1  Biss.  Stat,  of  Minn.,  p.  673,  see.  178;  Wag-  Stat.  Mo.,  pp  94,  96, 
sees.  10,  25. 

30 


VOID    JUDICIAL    SALES.  §    12 

reDiains  undisposed  of ;  2,  the  debts  of  the  decedent :  o,  the 
amount  due  or  to  become  due  on  the  family  allowance  ; 
4,  the  debts,  expenses  and  charges  of  administration  ac- 
crued and  to  accrue;  5,  a  greneral  description  of  all  the 
real  property  of  which  the  decedent  died  seized,  or  in  which 
he  had  any  interest,  or  in  which  the  estate  has  acquired  any 
interest,  and  the  condition  and  value  thereof,  and  whether 
the  same  be  community  or  separate  property;  G,  the  names 
of  the  heirs,  legatees  and  devisees  of  the  deceased,  so  far 
as  known  to  the  petitioner.  If  any  of  the  matters  here 
enumerated  cannot  be  ascertained,  it  must  be  so  stated  in 
the  petition.^  Whenever  the  question  has  arisen,  the  su- 
preme court  of  this  State  has  decided  that  the  power  of 
the  probate  court  to  order  a  sale  depended  upon  a  petition 
in  substantial  compliance  with  the  statute.-  In  Missouri, 
if  any  person  die  and  his  personal  estate  be  insufficient  to 
pay  his  debts  and  legacies,  his  executor  or  administrator 
shall  present  a  petition  stating  the  facts."^  The  petition 
shall  be  accompanied  by  a  true  account  of  his  administra- 
tion; a  list  of  debts  due  to  and  by  the  decedent,  and  re- 
maining unpaid,  and  an  inventory  of  the  real  and  personal 
property,  with  its  appraised  value,  and  all  other  assets.* 
It  seems  now  to  be  settled  in  that  State,  that  the  jurisdic- 
tion of  the  court  attaches  on  the  filing  of  the  petition,  and 
that  the  omission  of  the  accounts  and  lists,  required  by 
statute  to  accompany  it,  is  not   fatal. '^     In    Wisconsin    and 

1  C.  C.  P.  of  C'aL,  sec.  1537. 

2  (iregory  v.  McPheison,  13  Cal.  562;  Stuart  v.  Allen.  IG  Cal.  473; 
s.  c,  76  Am.  Dec.  551 ;  Townsend  v.  Gorden,  19  Cal.  188;  Gregory  v. 
Taber.  10  Cal.  397;  s.  c,  79  Am.  Dec.  219:  Ilaynen  v.  Meeks,  20  Cal.  288; 
Fitch  V.  Miller.  20  Cal.  352;  also,  to  same  effect,  Ackley  v.  Dygert,  33 
Barb.  IDO:  Bree  v.  Bree,  51  111.  367. 

3  1  Wag.  Stat,  of  Mo.,  p.  94,  sees.  10,  11. 
*  1  Wag.  Stat,  of  Mo.,  p.  94,  sec.  22. 

■>  Overton  v.  Johnson,  17  Mo.  442 ;  Mount  v.  Valley,  19  Mo.  621 ;  Gray- 
son V.  Weddle,  63  Mo.  523 ;  Pattee  v.  Thomas,  58  Mo.  163.  These  cases, 
we  think,  are,  in  principle,  directly  opposed  to  the  New  York  oases- 
Bloom  v.  Burdick.  1  Hill,  130:  s.  c,  37  Am.  Dec.  299:  Kurd  v.  Wals- 
worth,  15  Wend.  450;  Jackson  v.  Crawfords.  12  Wend.  533. 

31 


§     13  VOID    JUDICIAL    SALES. 

several  other  States,  the  statute  provides  that  sales  shall  not 
be  avoided  on   account  of  any   irregularity,  if  it  appears: 

1,  that  the  executor,  administrator  or  guardian  was  licensed 
to  make  the  sale  by  the  probate  court  having  jurisdiction ; 

2,  that  he  gave  a  bond  on  the  granting  of  the  license  ;  3, 
that  he  took  the  oath  as  prescribed  by  statute  before  making 
the  sale ;  4,  that  he  gave  the  notice  of  the  sale  ;  and,  5,  that 
the  premises  were  sold  in  good  faith  and  the  sale  confirmed. 
Under  this  statute,  sales  based  on  defective  petitions  are 
held  valid. ^ 

§  13.  Petitions  for  Sale  Liberally  Construed — When 
other  Papers  may  be  Referred  to. — The  rule  of  law  that 
declares  void  probate  sales  based  on  insufficient  petitions,  is 
very  harsh  in  its  operation.  To  avoid  the  necessity  of 
applying  the  rule,  the  courts  will  construe  petitions  as  lib- 
erally as  possible.  They  will  not  require  the  use  of  the 
exact  languaofe  of  the  statute:  they  will  forgive  all  errors 
of  form  ;  they  will  regard  it  as  sufficient  if  the  matters 
stated  are  substantially  those  required  to  be  stated  ;  and,  in 
interpreting  the  language  used,  they  will  seek  to  find  in  it 
something  to  support,  rather  than  to  destroy  the  title  based 
on  the  probate  proceedings.-  In  drafting  the  petition,  ref- 
erence may  be  had  to  some  other  paper  on  file,  and,  by  such 
reference,  this  ))aper  may  be  made  a  part  of  the  petition. 
The  petition,  for  instance,  may  state  that  a  full  description 
of  the  real  and  personal  estate  can  be  ascertained  from 
the  inventory  on  file.  Where  this  is  done,  it  will  be  suffi- 
cient that  this  jurisdictional  fact  appears  from  the  inven- 
tory."^    But,  to  justify  a  reference  to  the  inventory  or  other 

1  Reynolds  v.  Schmidt,  20  Wis.  374;  Mohr  v.  Tulip,  40  Wis.  G6;  Mohr 
V.  Mauierre,  lOlU.  S.  41 ;  s.  c.,0  Ch.  L.iSr.270;  IBiss.Stat.  Minn.,p.  680, 
sec.  -223;  Coou  v.  Fry,  6  Mich.  .506;  Woods  v.  Monroe,  17  Mich.  238; 
McKeever  v.  Ball,  71  Ind.  406 ;  Rimwell  v.  St.  Albans  Bank,  28  Minn.  202. 

-  Morro^v  v.  Weed,  4  la.  77;  s.  c,  66  Am.  Dec.  122;  King  v.  Kent's 
Heir's,  29  Ala.  .542;  Moffit  v.  Moffit,  69  111.  641;  De  Bardelaben  v. 
Stoundenmire,  48  Ala.  643:  Fitch  v.  Miller,  20  Cal.  382;  Haynes  v. 
Meeks,  10  Cal.  315;  Wright  v.  Ware,  50  Ala.  549;  Maurr  v.  Parrish,  26 
Ohio  St.  636;  Wing  v.  Dodge,  SO  111.  564;  Bowen  v.  Bond,  SO  111.  351. 

3  Bentz's  Est.,  36  Cal.  687;  Stuart  v.  Allen,  16  Cal.  501;  s.  c.  76  Am. 
Dec.  551 ;  Sheldon  v.  Wright,  7  Barb.  47. 

32 


VOID    JUDICIAL    SALES.  §    14 

paper  on  tile,  "  it  must  hiive  been  referred  to  in  the  i)eti- 
tion,  so  as  to  become  a  part  of  it,  for  the  purpose  of  refer- 
ence;" 1  and  it  seems  that  the  reference  made  to  the  inven- 
tory or  other  papers  on  tile,  must  desic^nate  the  imperfec- 
tion or  defect  which  it  was  intended  to  sup})ly.  Thus, 
where  the  reference  to  the  inventor}^  purports  to  be  "for 
greater  certainty,"  "without  statinoj  for  what  the  reference 
was  made,  whether  for  description,  or  value,  or  condi- 
tion," the  court  said:  "We  think  this  reference  was  in- 
sufficient to  incorporate  the  inventory  as  a  part  of  the  peti- 
tion as  to  description,  or  value,  or  condition."-  In  this 
case  the  inventory  mentioned  several  pieces  of  real  prop- 
erty, some  of  which  were  sufficiently  and  others  insuffi- 
ciently described.  The  statute  required  the  description  of 
all  the  lands  of  the  decedent,  in  any  petition  for  their  sale. 
The  object  of  this  requisition  was  to  disclose  to  the  court 
all  the  real  property  of  the  decedent,  to  aid  in  determining 
the  necessity  for  the  sale  of  the  whole  or  anv  i)art  of  the 
lands,  and  if  of  a  part  only,  then  to  advise  the  court  as  to 
which  part.  Hence,  it  was  held  that  the  fact  that  some  of 
the  parcels  were  sufficiently  described,  does  not,  even  as  to 
these  parcels,  cure  the  defect  arising  from  the  im[»('rtect 
description  of  the  other  parcels.^ 

§  14.  Petition  need  not  be  True. — The  jurisdiction  of 
the  court  over  the  subject-matter  attaches  on  the  riling  of  a 
petition  sufficient  in  form.  The  matter  stated  in  the  peti- 
tion may  or  may  not  be  true.  The  functions  of  the  court 
are  of  such  a  character  that  it  may  inquire  into  the  truth  or 
falsity  of  the  petition.  The  petition  may  be  regarded  as  a 
complaint.  The  heirs,  when  jurisdiction  over  them  is 
obtained,  may  be  treated  as  entering  a  general  denial.  The 
order  of  the  court,  fjrantins  or  refusinfj  the  |)ra\er  of  tlu> 
petition,  is  in  the  nature  of  a  judgment  conclusively  estab- 
lishing that  the  sale  is  or  is  not   necessary.      If  erroneous, 

'  Gregory  v.  Taber,  V.)  Cal.  409;  s.  c,  7!)  Am.  Dec-.  2\u. 
2  Wilson  V.  Hastings,  .">  W.  C.  Rep.  :n ;  s.  <;.,  00  Cal.  21:5. 
"  Ibid. 


§15  VOID    JUDICIAL    SALES. 

it  must  be  corrected  by  appeal,  or  some  other  appropriate 
proceeding.  It  cannot  be  collaterally  avoided  by  showing 
that  the  petition  was  false. ^ 

§  15.      Cases  Holding  that  no  Notice  is  Necessary — We 

have  already  spoken  of  the  proceeding  in  probate  to  obtain 
a  sale    of    real  estate  as  an  independent  adversary  proceed- 
ing in  personam.     If  it  be,  in  fact,  such  a  proceeding,  then 
the  defendants  must  be  brought  before  the  court  by  some- 
thing  which   is  equivalent  to  the   service  of  process,  and 
given  an  opportunity  of  resisting,  in  case  they  deem  resist- 
ance proper  to  be  made.     Nearly   all  the   statutes    require 
some  order  to  show  cause  against  the  petition,  to  issue  and 
to  be  served  on  the  parties  in  interest,  either  personally  or 
by  publication.     In  a  few  of  the  States  this  requirement  is 
not  jurisdictional.     The  purchaser  need  not,  in  those  States, 
ask  whether  the  notice   to  show  cause  against  the  petition 
was  or  was  not  given.     The  sale  is  valid  if  supported  by  a 
sufficient  petition  and  an  order  of  sale  made  thereon.     "On 
a  proceeding  to   sell  the   real   estate  of    an  indebted  estate 
there  are  no  adversary  parties,  the  proceeding  is  in  retn,  the 
administrator  represents  the   land;    they   are  analagous  to 
proceedings  in  the  admiralty,  where  the  only  question  of 
jurisdiction  is  the  power  of  the  court  over  the  thing — the 
subject-matter  before  them — without  regard  to  the  persons 
who  may  have  an  interest  in  it;   all  the  world  are   parties. 
In  the  orphan's   court,  and  all  courts   who  have   power  to 
sell  the  estates  of   intestates,  their  action  operates   on  the 
estate,  not  on  the  heirs  of  the  estate  ;  a  purchaser  claims, 
not  their  title,  but  one   paramount.     The   estate   passes  to 
him  by  operation  of  law.     The  sale  is  a  proceeding  in  rem, 
to  which  all  claiming  under  the  intestate  are  parties."^ 

1  Camden  v.  Plain,  91  Mo.  117;  Seymour  v.  Ricketts,  21  Neb.  240; 
Jackson  v.  Crawfords,  12  Wend.  533;  Fitch  v.  Miller,  20  Cal.  382;  Stuart 
V.  Allen,  16  Cal.  473;  s.  c,  76  Am.  Dec.  5.51 ;  Hayues  v.  Meeks,  20  Cal. 
288 ;  McCauley  v.  Harvey,  40  Cal.  497 ;  Grignon's  Lessee  v.  Astor,  2 
How.  (U.  S.)  339;  Bowen  v.  Bond.  SO  111.  351;  Grayson  v.  Weddle,  63 
Mo.  523. 
2Giignon's  Lessee  v.  Astor,  2  How.  (U.  S.)  338;  Beauregard  v.  New 

34 


VOID    JUDICIAL    8ALES.  §    16 

This  position  is  maintained  more  frequently  with  respect 
to  guardian's  sales,  than  with  respect  to  those  made  by 
executors  or  administrators,  and  with  more  plausibility. 
For  the  petition  for  sale  filed  by  a  guardian,  it  is  with 
much  force  insisted,  is  merely  the  petition  of  the  ward  act- 
ing through  his  duly  accredited  agent.  Under  this  view, 
the  ward  is,  in  legal  effect,  the  petitioner,  and  there  is  no 
necessity  of  advising  him  of  the  existence  of  his  own  peti- 
tion, and  warning  him  that  it  will,  at  a  certain  time,  be 
granted.  If  any  notice  is  required  by  statute,  it  is  claimed 
that  such  notice  is  for  the  protection  of  third  i)ers()ns 
whose  interests  may  somehow  be  affected;  and  that  its 
omission  in  nowise  impairs  the  force  of  the  proceedings  as 
against  the  ward.^ 

§  16.  Notice  of  Petition — Cases  Holding  it  Indispens- 
able.— Avery  decided  majority  of  the  authorities  is  opposed 
to  the  principles  stated  in  the  preceding  section.  This 
majority  declares  that  the  proceeding,  to  obtain  an  order  to 
sell  real  estate,  is  a  new  and  independent  proceeding  i?ij9e?"- 
sonam,  in  which  the  petitioner  is  the  plaintiff,  the  petition 
is  the  complaint,  the  parties  whose  property  is  to  be  sold 
are  the  defendants,  and  the  order  to  show  cause,  or  the 
notice  to  appear  is  the  summons  ;  that  the  defendants  are 
not  in  court  until  this  summons  is  served,  or  its  service  has 

Orleans,  18  How.  (U.  S.)  497 ;  Comstock  v.  Crawford,  3  Wall.  396 ;  Tony ue 
V.  Morton,  6  H.  «fc  J.  21;  McPherson  v.  Cundiff,  11  S.  &  R.  422;  s.  c,  14 
Am.  Dec.  642;  Gager  v.  Henry,  .5  Saw.  C.  C.  237;  Doe  v.  McLoskey,  1 
Ala.  708;  Perkins  v.  Winter,  7  Ala.  855;  Matheson  v.  Ileariu.  29  Ala. 
210;  Duval's  Heirs  v.  P.  and  M.  Bank,  10  Ala.  636;  Field's  Heirs  v. 
Goldsby,  28  Ala.  224;  Satcher  v.  Satcher's  Admr.,  41  Ala.  39;  s.  c,  91 
Am.  Dec.  498;  Rogers  v.  Wilson,  13  Ark.  .o07;  Sheldon  v.  Xewton.  3 
Ohio  St.  494;  George  v.  Watson,  19  Tex.  354;  Mohr  v.  Manierre,  101  I'. 
S.  41 ;  s.  c,  9  Ch.  L.  N.  270;  Ewing  v.  Higby,  7  Ohio,  pt.  1,  p.  198;  s. 
c,  28  Am.  Dec.  633;  Robb  v.  Irwin,  15  Ohio,  689;  Snevely  v.  Lowe,  18 
Ohio,  308;  Benson  v.  Cilley,  8  Ohio  St.  614— overruling  Adams  v.  Jeff- 
ries, 12  Ohio,  272. 

1  Mohr  V.  Porter,  51  Wis.  487;  Mohr  v.  Manierre,  101  U.  S.  41 ;  s.  c. 
9  Ch.  L.  N.  270;  Mulford  v.  Beveridge,  78  111.  458;  Spring  v.  Kane,  S6 
111.  580;  Montgomery  v.  Johnson,  34  Ark.  74. 

35 


§17  voi'd  judicial  sales. 

been  waived  by  persons  competent  to  waive  it;  and  that 
Avhenever  it  is  conceded  or  siiown  that  any  person  inter- 
ested was  not  summoned  to  appear,  substantially^  as  pro- 
vided by  statute^  the  whole  proceeding,  as  against  him,  is 
utterly  void.^  The  administrator,  as  such,  has  no  control 
over  the  real  estate  left  by  the  intestate.  His  authority  to 
sell,  if  it  exists,  was  conferred  by  the  orders  of  the  sur- 
rogate and  the  other  proceedings  before  him.  The  latter 
derives  his  power  from  the  statutes,  and  in  order  to  confer 
the  authority  upon  the  administrator  to  transfer  the  title  to 
the  land,  and  thus  disinherit  the  heirs  of  the  intestate,  it  is 
requisite  that  the  directions  of  the  statute,  so  far  as  they 
relate  to  the  acquiring  of  jurisdiction  of  the  subject-matter, 
and  of  the  parties  to  be  affected  by  the  proceedings,  should 
be  strictly  complied  with.  These  principles  are  elemen- 
taiy,  and  no  citation  of  authority  to  sustain  them  is  neces- 
sary .2 

§  17.  The  Service  of  Notice  on  a  Minor  cannot  be 
Waived  nor  Dispensed  witli. — It  cannot  be  waived  by  the 
minor,  because  he  is  incompetent  to  act  for  himself.^ 
Neither  can  it  be  waived  by  a  guardian,  unless  the  statute 

1 /n  re  Maboney,  34  Hun,  501;  Jenkins  v.  Yountj,  35  Hun,  569;  Hal- 
leck  V.  Moss,  17  Cal.  339;  Coy  v.  Downie,  14  Fla.  544;  Clark  v. Thomp- 
son, 47  111.  -25;  s.  C,  95  Am.  Dec.  457;  Doe  v.  Bowen,  8  Ind.  197;  s.  C, 
65  Am.  Dec.  758;  Gerrard  v.  Thompson,  12  Ind.  636;  Babbitt  v.  Doe,  4 
Ind.  355;  Good  v.  Xorley,  28  la.  188;  Washburn  v.  Carmichael,  32 
la.  475;  Valle  v.  Fleming,  19  Mo.  4.54;  s.  c,  61  Am.  Dec.  566;  Camp- 
bell V.  Brown.  6  How.  (Miss.)  106;  Winston  v.  McLendon,  43  Miss.  554; 
Puckett  V.  McDonald,  6  How.  (Miss.)  269;  Vick  v.  Mayor,  1  How.  (Miss.) 
379;  8.  c,  31  Am.  Dec.  169;  Hamilton  v.  Lockhart,  41  Miss.  460;  French 
V.  Hoyt,  6  N.  H.  370;  s.  c,  25  Am.  Dec.  464;  Corwin  v.  Merritt,  3  Barb. 
341 ;  Schneider  v.  McFarland,  2  X.  Y.  459 ;  Dakin  v.  Hudson,  6  Cow.  222 ; 
Fiske  V.  Kellogg.  3  Greg.  503;  Taylor  v.  Walker,  1  Heisk.  734;  Gibbs  v. 
Shaw,  17  Wis.  197;  Blodgett  v.  Hitt,  29  Wis.  169;  Beckett  v.  Selover,  7 
Cal.  215;  s.  c,  68  Am.  Dec.  237;  Rankin  v.  Miller,  43  la.  11 ;  Mickel 
V.  Hicks,  19  Kaus.  578;  s.  c,  27  Am.  Eep.  161;  Rule  v.  Broach,  58  Miss. 
552;  Wisnei-  v.  Brown,  .50  Mich.  553;  Pinckney  v.  Smith,  26  Hun,  524; 
Bloom  V.  Burdick,  1  Hill,  130:  s.  c,  37  Am.  Dec.  299. 

2  Sibley  v.  Waffle,  16  N.  Y.  185. 
Winston  v.  McLendon,  43  Miss.  254. 

3G 


VOID    JUDICIAL    SALES.  §    1  7 

iu  direct  teims  invests  him  with  that  power. ^  Nor  can  the 
court  by  any  means  exonerate  itself  from  complying  with 
the  statute.  It  cannot,  without  service  of  the  notice  on 
the  minor,  appoint  any  guardian  ad  litem  for  him.  The 
appointment  of  such  guardian  and  his  subsequent  appear- 
ance in  the  cause  as  the  representative  of  the  minor  cannot 
cure  an\'  jurisdictional  defect,  nor  tend  to  the  validation  of 
a  proceeding  otherwise  void.-  Service  of  notice  on  the 
guardian  of  a  minor  does  not,  in  the  absence  of  a  statute  to 
that  effect,  dispense  with  the  necessity  for  serving  the 
minor  himself.^  In  New  York,  a  guardian  must  be  ap- 
pointed for  minor  heirs  on  tiling  the  petition,  and  notice 
must  thereafter  be  given  to  heirs.  The  giving  of  the  notice 
in  advance  of  the  appointment  of  the  guardian  is  invalid.* 
If  the  person  applying  for  the  license  to  sell  is  also  the 
guardian  of  the  minors,  his  position  as  petitioner  is  incom- 
patible with  his  duty  as  guardian.  He  cannot,  therefore, 
represent  the  heir,  and  the  latter  must  have  another  repre- 
sentative appointed  for  the  occasion.'^  In  Indiana,  the 
statute  authorizes  the  guardian  of  a  minor,  on  the  presenta- 
tion of  a  petition  for  the  sale  of  lands  in  which  he  is  inter- 
ested, to  appear  for  him  and  consent  to  the  sale.  This  was 
held  to  confer  authority  upon  a  person,  tilling  the  offices  of 
administrator  and  guardian,  to   petition   for   a   sale   iu   his 

1  Doe  V.  Anderson.  5  Ind.  33;  Dickison  v.  Dickison,  124  111.  4S3;  Iliek- 
enbotham  V.  Blackledge,  54  111.  316;  Hough  v.  Doyle,  S  Blackf.  300; 
Ingersoll  V.  lugersoll,  54  Tex.  LIS:  Helm-  v.  Chadbourne,  45  Wis.  00: 
Greenman  V.  Harvey.  53  111.  3SU;  Iuger<oll  v.  Maugani,  84  X.  Y.  (i2-J. 
Xor  has  an  attorney  any  power  to  enter  an  appearance  for  a  minor  net 
served  with  process.     Bonuell  v.  Holt,  S9  111.  71. 

2  Chambers  v.  Jones.  72  111.275;  ,Moorev.  Starks,  1  Ohio  St.  3(51):  (n.od 
v.  Xorley,  28Ia.  188;  Clark  v.  Thompson.  47  111.  25;  s.  c,  '.i5  Am. 
Dec.  457. 

3  Clark  V.  Thompson,  47  111.  25. 

■i  Ackley  V.  Dygert,  33  Barb.  17(J;  Havens  v.  .Sherman.^-'  Barb.  (i:'.C.: 
Schneider  v.  McFarland,  2  N.  Y.  450. 

■'  Havens  v.  Sherman,  42  Barb.  <i3(i;  Schneider  v.  McFarland,  2  N.  Y. 
4.50,  Townsend  v.  Tallant.  :'.:!  Cal.  52:  >.  c.  !d  Am.  \H'i.\  017:  Kenni'.ly 
V.  Gaines.  51  Miss.  025. 

37 


§    18  VOID    JUDICIAL    SALES. 

former  capacity,  and  to  assent  to  it  in  the  latter. ^  In 
Illinois,  proceedings  by  a  guardian  for  the  sale  of  the  lands 
of  his  ward  are  purely  in  rem,"  In  Florida,  no  service  of 
process  on  an  infant  heir  is  required.  The  court  must  ap- 
point a  guardian  ad  litem.  But  if  no  guardian  ad  litem  is 
appointed,  and  the  general  guardian  is  served  with  process 
and  ai)pears  and  represents  the  minor,  the  proceedings  are 
not  void. 3  In  Mississippi,  if  the  guardian  of  a  minor 
petitions  for  the  sale  of  the  lands  of  his  ward,  no  notice 
need  be  o-iven  the  latter.  A  summons  must  issue  to  the 
co-heirs,  and  also  to  three  of  the  nearest  relatives  of  the 
minor  living  in  the  State.  The  omission  to  summon  these 
relatives  is  fatal  to  the  subsequent  proceedings.* 

§  18.  The  Notice  Must  be  Given  in  the  Manner  Pre- 
scribed by  Statute,  or  it  is  Inoperative.^ — If  it  attempts  a 
description  of  the  land  sought  to  be  sold,  the  description 
must  be  correct.  A  license  to  sell  one  tract  of  land,  founded 
on  a  notice  designating  a  different  tract,  is  void.*^  If  a 
statute  directs  notice  to  be  given  by  personal  service,  unless 
publication  thereof  is  ordered  by  the  court,  a  publication  is, 
in  the  absence  of  such  order,  inoperative.'^  If  a  copy  of 
the  petition  and  account  are  required  to  be  served,  the 
service  of  a  summons  in  their  stead  is  unauthorized,  and, 
therefore,  void.*  If  a  publication  is  directed  to  be  made  in 
a  specified  newspaper  for  four  weeks,  it  cannot  be  made  in 
that  paper  for  three  weeks,  and  in  another  paper  the  re- 
maining week.^     If  the  return  day  named  in   the   order  to 

1  Jones  V.  Levi,  72  Ind.  58G. 

2  Mulford  V.  Beveridge.  78  111.  455. 

3  Price  V.  Winter,  15  Fla.  66. 

*  Stampley  v.  King,  51  Miss.  728. 

5  Herdman  v.  Short,  18  111.  .59;  Gibson  v.  Roll,  27  111.100;  s.  c,  83  Am. 
Dec.  181;  Morris  v.  Hogle,  37  111.  150;  S.  C,  87  Am.  Dpc.  243;  Schnell 
V.  Chicago,  38  El.  383;  s.  C,  87  Am.  Dec.  304;  Bree  v.  Bree,  51  111.  367. 

^Frazier  V.  Steenrod,  7  Iowa,  339;  s.  c,  71  Am.  Dec.  447.  Contra: 
Maurr  v.  Parrish,  26  Ohio  St.  636. 

'  Halleck  v  Moss,  17  Cal.  339. 

^  Johnson  v.  Johnson,  30  111.  223. 

9  Townsend  v.  Tallant,  33  Cal.  45;  s.  c,  91  Am.  Dec.  617. 

38 


VOID    JUDICIAL    SALES.  §    11' 

show  cause,  thouojh  fixed  by  the  court,  is  not  a  daj'  on  wliich 
it  can  by  law  be  made  returnable,^  oris  not  sufficiently  dis- 
tant to  permit  the  giving  of  the  notice  for  the  full  time 
prescribed  by  law,  the  subsequent  proceedings  based  on 
such  order  to  show  cause  are  void.-  Ordinarily,  there  is  a 
wide  distinction  between  the  effect  of  process  defectively 
served  and  process  not  served  at  all;  and  this  distinction, 
to  some  extent  at  least,  applies  to  proceedings  in  probate. 
Hence,  it  has  been  held  that,  under  a  statute  requiring  the 
notice  of  application  for  an  order  of  sale  to  be  personally 
served  on  a  minor,  a  return  showing  service  by  reading  the 
notice  to  the  minor  and  leaving  a  copy  with  his  father,  is 
sufficient  to  maintain  the  jurisdiction  of  the  court  over  such 
minor,  because  the  case  "  is  not  one  of  no  notice,  but  of 
defective  service  of  notice."^ 

§  19.  The  Xotice  Must  be  Given  fur  the  Time  Pre- 
scribed.— The  publication  of  a  notice  for  a  shorter  time 
than  that  sanctioned  by  law  is  void,  and  can  impart  no 
validity  to  a  sale  or  other  subsequent  proceeding  resting 
upon  it.*  This  is  true,  although  the  time  is  shortened  by 
an  order  of  court  in  a  case  where  the  statute  does  not  give 
the  court  that  power .-^  If  a  statute  requires  the  notice  to 
be  published  for  three  successive  weeks,  the  first  publica- 
tion to  be  six  weeks  before  the  presentation  of  the  petition, 
and  the  notice,  as  published,  designates  a  day  for  the  pre- 
sentation less  thaufc-ix  weeks  from  the  date  of  the  first  pub- 
lication, the  notice  is  void,  and  cannot  be  made  valid  b}' 
presenting  the  petition  at  a  later  day  than  that  si)ecitied  in 
the  notice. •"'  No  notice  need  be  given  to  persons  in  adverse 
possession,  unless  the  statute  directs  it."     Giving  notice  to 

1  Haws  V.  Clark,  37  la.  355. 

2  Slilwell  V.  Swartbout,  81  N.  Y.  109. 

3  Bunce  v.  Bunce,  59  la.  532. 

•>  TownsfMid  V.  Tallaiit,  33  Cal.  45;  s.  C,  91  Am.  Dec.  (517;  Corwiii  v. 
Merritt,  3  Barb.  341;  Monahau  v.  Vandyke,  27  111.  155;  JIavens  v.  SIi.t- 
man  42  Barb.  636.     Contra,  by  statute,  Woods  v.  Monroe,  17  Midi.  215. 

*  Havens  v.  Sherniau,  42  Barb.  636. 

6  Gibson  v.  Roll,  30  111.  178;  s.  c,  83  Am.  Dec.  ISl. 

'  Yoemans  v.  Brown,  8  Met.  51. 

ay  (4) 


§    20  VOID    JUDICIAL    SALES. 

a  person  actincr  in  one  capacity  seems  not  to  affect  him 
when  claiming  in  another  ca{)acity .  Hence,  a  consent  given 
by  a  woman  as  guardian  of  minors  was  held  not  to  preju- 
dice her  chiim  as  widow  of  the  decedent.^ 

§  20.  The  Order  of  Sale  and  its  Effect  as  an  Adju- 
dication.— If,  upon  hearing  of  the  petition,  the  court  is 
satisfied  that  a  proper  case  exists,  it  will  enter  an  order  or 
license  for  the  sale  of  the  land.  If  the  court  had  juiisdic- 
tion,  this  order,  until  vacated  or  reversed,  is  binding  upon 
all  parties  in  interest.  The  purchaser  under  it  is  in  no 
danger  of  losing  his  title  by  proof  being  made  that  the 
order  was  erroneously  given.  It  cannot  be  collaterally 
attacked  for  error,  fraud  or  irregularity,  if  the  court  had 
jurisdiction.^  When  jurisdiction  is  once  obtained  over  a 
proceeding,  the  decision  of  the  court  is  always  conclusive 
on  the  [)arties  if  it  keeps  within  the  limits  of  its  jurisdic- 
tion, unless  reversed  upon  appeal,  or  by  some  other  })ro- 
ceeding  sanctioned  by  law  for  the  purpose  of  correcting 
errors  of  proceeding  or  decision.  This  rule  applies  to 
courts  of  inferior,  limited  or  special  jurisdiction,  as  well  as 
to  those  of  the  highest  rank  and  most  comprehensive 
authority.  When  a  court  grants  an  order  of  sale,  and  in 
pursuance  of  such  order  the  property  thereby  authorized  to 
be  sold  is  sold,  the  purchaser,  to  maintain  his  title,  is  not 
required  tore-establish  the  facts  which  the  court  must  have 
found  to  be  true   before  it  entered   such   order,  nor   vet  to 


1  Helms  V.  Love,  41  Ind.  210. 

2  Freeman  on  .Judgments,  sec.  319a;  Stow  v.  Kimball,  28  111.  93; 
Beckett  v.  Selover,  7  Cal.  215;  s.  C,  68  Am.  Dec.  237;  Farrington  v. 
King,  1  Bradf.  182;  Spragins  v.  Tiiylor,  48  Ala.  520;  Jackson  v.  Robin- 
son, 4  Wend.  437;  Boyd  v.  Blankman,  29  Cal.  19;  Myer  v.  McDougal,  47 
111.  278;  Carter  v.  Waugh,  42  Ala.  452;  Morrow  v.  Weed,  4  la.  77;  s.  c, 
66  Am.  Dec.  122;  Atkins  v.  Kinnan,  20  Wend.  241;  s.  c,  32  Am.  Dec. 
534;  Mulford  v.  Stalzenback,  46  111.  303;  Savage  v.  Benhara,  17  Ala.  119; 
Sprigg's  Estate,  20  Cal.  121;  Giddings  v.  Steele,  28  Tex.  750;  s.  c,  91 
Am.  Dec.  336;  Gurney's  Succession,  14  La.  An.  622;  Hatcher  v.  Clifton, 
33  Ala.  301 ;  Walker  v.  Morris,  14  Ga.  323 ;  Barbee  v.  Perkins,  23  La. 
An.  331 ;  Gordon  v.  Gordon,  55  N.  H.  399. 

40 


VOID    JUDICIAL    SALES.  §   20 

defend  the  legal  conclusions  which  the  court  drew  from 
such  facts.  If  any  errors  were  committed,  as  in  the  admis- 
sion or  rejection  of  evidence,  or  in  making  findings  of 
fact,  express  or  implied,  not  sustained  by  the  evidence,  or 
in  reaching  conclusions  not  warranted  by  the  facts  found, 
the  remedy  of  any  party  prejudiced  thereby  is  by  motion 
for  new  trial,  or  by  some  other  revisory  or  appellate  pro- 
ceeding. Failing  to  resort  to  this  remedy,  the  order  of  sale 
must  be  respected,  and  cannot  be  destroyed  by  any  collat- 
eral assault. 1  Hence,  the  sale  cannot  be  nullified  b}^  proof 
that  there  was  no  necessity  therefore,  nor  by  any  other  proof 
which  involves  a  re-examination  of  the  issues  necessarily 
involved  in  the  order  of  sale.^  There  are  some  cases  which 
appear  to  permit  a  re-examination  of  the  legal  conclusions 
drawn  by  the  court  in  ordering  the  sale.  Thus,  sales  were 
held  void  in  one  instance,  because  ordered  to  raise  funds  to 
pay  debts  barred  by  the  statute  of  limitation,-^  and  in  an- 
other because  the  order  did  not  show  any  necessity  for  the 
sale.*  If  these  and  kindred  cases  can  be  maintained  upon 
principle,  it  must  be  on  the  ground  that  the  petitions  and 
orders  were  so  deficient  in  essential  elements  that  they  did 
not  disclose  any  case  calling  for  judicial  action,  and,  there- 
fore, left  the  court  without  jurisdiction,  according  to  the 
decisions  cited  in  section  eleven. 

The  form  of  the  order  is  different  in  the  diiferent  States. 
In  California,  it  "must  describe  the  lands  to  be  sold  and 
the  terms  of  the  salc."^     In   iNtassachusetts,  it   need   not 

1  Myers  v.  Davis,  47  Iowa,  32.5 ;  Fleming  v.  Bale,  23  Kans.  88 ;  McDade  v. 
Burch,  7  Ga.  559;  s.  c,  .50  Am.  Dec.  407;  Long  v.  Wcller,  29  Gratt.  347; 
Grayson  v.  Weddle,  63  Mo.  523;  Pratt  v.  Iloughtating,  45  Mich.  457; 
Weyer  v.  Second  Nat.  Bank,  57Ind.  198;  Gardner  v.  Mawney,  95  111. 
552;  Merrill  v.  Harris,  26  N.  H.  143;  s.  c,  57  Am.  Dec.  359. 

2  Boweu  V.  Bond,  80  111.  351 ;  Allen  v.  Shcpard,  87  111.  314;  Myers  v. 
Davis,  47  Iowa,  325;  Arrowsmith  v.  Ilarnioning,  42  Ohio  St.  254;  Davis 
V.  Gaines,  104  U.  S.  386;  Abbott  v.  Curran,  98  N.  Y.  (505;  Cromwell  v. 
Hull,  97  N.  Y.  209. 

3  Heath  v.  Wells,  5  Pick.  139;   s.  c,  16  Am.  Dec.  383. 

*  Wyatts  V.  Kambo,  29  Ala.  510;   s.  c,  68  Am.  Dec.  89. 
''  C.  C.  P.  of  Cal.,  sec.  1554. 

41 


§   20  VOID    JUDICIAL    SALES. 

designate  which  part  of  the  testator's  lands  are  to  be 
sold.i  In  Texas,  an  order  to  sell  all  the  lands  of  a  decedent 
was  thought  to  be  proper,^  while  a  license  for  the  sale  of  so 
much  as  would  raise  $1,500  (it  appearing  that  the  decedent 
held  34,000  acres)  was  regarded  as  of  very  questionable 
validity.^  In  Alabama,  a  license  to  sell  must  designate  the 
place  of  sale.*  In  Texas,  the  direction  of  the  statute  that  the 
order  of  sale  contain  a  description  of  the  property  to  be  sold 
was  held  to  be  directory  merely. ^  In  Georgia,  the  order 
may  be  to  sell  "all  the  real  estate  of  the  decedent,"  with- 
out any  further  attempt  at  description.*^  In  Arkansas,  the 
fact  that  the  order  contains  no  description  does  not  render 
it  inoperative,  if  it  appears  to  be  granted  on  a  certain  pe- 
tition, and  that  petition  contains  a  full  and  adequate  de- 
scription.'^ In  California,  it  was  formerly  held  that  "the 
order  of  sale  must  be  in  itself  sufficient,  and  to  make  it  so, 
the  description  of  land  to  be  sold  must  be  sufficiently  defi- 
nite and  certain,  without  reference  to  any  extraneous 
matter."^  Hence,  it  was  said  that  the  description  "twenty- 
one  acres  of  the  Ranch  La  Golita,  being  the  share  of  a 
tract  of  thirty-one  acres  allotted  to  said  minors  by  a  decree 
of  the  district  court  of  Santa  Barbara  county,  in  a  suit  in 
partition  wherein  the  guardian  herein  and  mother  of  said 
minors  was  plaintiff,  and  said  minors  were  defendants,"  is 
fatally  defective.  This  very  absurd  ruling  has  been  form- 
ally abandoned  in  the  court  wherein  it  was  made,^  and  is 
not  likely  to  be  received  with  favor  elsewhere.  That  must 
be  regarded  as  certain  which  is  capable  of    being  made  so; 

1  Yeomans  v.  Brown,  8  Met.  51;    Norton  v.  Norton,  5  Cush.  524. 

2  Wells  V.  rolk,  36  Tex.  120. 

3  Graham  v.  Hawkins,  38  Tex.  628. 
^  Brown  v.  Brown,  41  Ala.  215. 

5  Robertson  v.  Johnson,  57  Tex.  62. 

6  Doe  V.  Henderson,  4  Ga.  148;  s.  c,  48  Am.  Dec.  216. 
^  Montgomery  v.  Johnson,  31  Ark.  74. 

«  Hill  V.  Wall,  66  Cal.  130;  s.  c,  4  W.  C.  Eep.  503;  Crosby  v.  Dowd, 
61  Cal.  557. 
••  Do  Sepulveda  v.  Baugh,  74  Cal.  468;  s.  c,  5  Am.  St.  K.  455. 

42 


VOID    JUDICIAL    SALES.  §    20 

and  this  rule  is,  upon  principle,  as  applicable  to  a  judg- 
ment, decree  or  order,  as  to  a  voluntary  conveyance.  Giv- 
ing the  number  of  the  lot  and  block  without  naming  the 
village  or  city  is  insufficient, ^  but  land  maybe  described  by 
abreviations  in  common  use,  as  "Sec.  12,  T.  17,  R.  21," 
if  the  county  is  named  i^  and  the  mentioning  of  "ninety- 
one  acres  of  the  southwest  corner"  of  a  designated  tract, 
where  the  decedent  owned  only  that  number  of  acres  in 
such  tract,  was  held  to  be  sufficient.^ 

1  Herrick  v.  Ammerman,  21  N.  W.  Kep.  836;  s.  C,  32  Minn.  544. 

2  Wright  V.  Ware,  50  xila.  549;  Money  v.  Turnipseed,  50  Ala.  499. 

3  Bloom  V.  Burdick,  1  Hill,  130;  s.  c,  37  Am.  Dec.  299. 

43 


VOID   JUDICIAL   SALES. 


CHAPTER  III. 


SALES  VOID   BECAUSE   OF   ERRORS    OR   OMISSIONS  SUBSEQUENT 
TO  THE  JUDGMENT  OR  ORDER  OF  SALE. 

SECTION. 

21.  General  Rule  Regarding  the  Effect  of  Irregularities. 

22.  Failure  to  give  Additional  Bond,  or  to  take  Oath  Concerning  the 

Sale. 

23.  The  Necessity  of  a  Valid  Execution,  or  Order  of  Sale. 

24.  The  Times  when  an  Execution  may  not  Issue. 

25.  Writs  of  Execution  must  be  Sufficient  in  Form. 

26.  Sales  in  the  Absence  of  Levies. 

27.  Sales  without  Inquisition  or  Appraisement. 

28.  Sales  without  Notice. 

29.  Sales,  by  Whom  may  be  Made. 

30.  Sales  made  at  an  Improper  Time. 

31.  Sales  made  at  an  Improper  Place. 

32.  Sales  not  at  Public  Auction. 

33.  Sales  to  Persons  Disqualifled  from  Purchasing. 

34.  Sales  to  Raise  More  Money  than  was  Authorized. 

35.  Sales  of  Property  not  Liable  to  Sale. 

36.  Sale  of  Different  or  Less  Interest. 

37.  Sale  of  Unlocated  Part. 

38.  Sales  of  Property  in  Adverse  Possession. 

39.  Sales  en  masse. 

40.  Sales  Infected  by  Fraudulent  Combinations  and  Devices. 

41.  Purchaser's  Title  not  Affected  by  Secret  Frauds. 

§  21.  General  Rule  Regarding"  Irregularities. — When 
a  judgment  or  order  of  sale  has  been  })ronouncod,  it  must 
next  be  enforced.  The  authority  which  pronounces  it  is 
judicial.     That  which  enforces  it  is  chiefly  ministerial.     In 

44 


VOID    JUDICIAL    SALES-  §    21 

the  exercise  of  this  ministerial  authority,  various  errors  of 
commission  or  of  omission  are  likely  to   occur.     We  shall 
devote  this  chapter  to  a  brief  and,  necessarily,    imperfect 
enumeration    of  those    ministerial    errors,    on    account  of 
which  a  judicial,  execution  or  probate  sale  may  be  adjudged 
void.     With   respect  to    judicial  and  execution  sales,  "the 
general   principle  to   be  deduced  from  the   authorities    is, 
that  the  title  of  a  purchaser,  not  himself  in   fault,  cannot 
be  impaired  at  law  nor  in  equity  by  showing  an}^  mere  error 
or  irregularity  in  the  proceedings.     Errors  and   irregulari- 
ties must  be  corrected   by  a  direct  proceeding.     If  not  so 
corrected,  they  cannot  be  made  available  by  way  of  collat- 
eral attack  on  the   purchaser's  title."  ^     Probate  sales,  we 
are  sorr^'  to  say,  are  generally  viewed  with  extreme  suspi- 
cion.    Though  absolutely  essential  to  the  administration  of 
justice,   and  forming  a  portion  of  almost  every  chain  of 
title,  they  are  too  often  subjected  to  tests  far  more  trying 
than  those  applied  to  other  judicial  sales.     Mere  irregulari- 
ties of  proceeding  have,  even  after  the  proceedings  had  been 
formally  approved  by  the  court,  often  resulted  in  the  over- 
throw of  the  purchaser's  title.    In  fact,  in  some  courts,  the 
spirit  manifested  toward   probate  sales   has   been   scarcely 
less  hostile  than  that   which   has   made  tax  sales  the  most 
precarious    of    all    the    methods    of     acquiring    title.     In 
other  courts,  however,  probate  sales  are  treated  as  indul- 
gently as  other  judicial  sales.-     It  is  sometimes  said  that  a 

1  Freeman  on  Executions,  sec.  389 ;  Freeman  on  Cotenancy  and  Par- 
tition, sec.  548;  Winchester  V.Winchester,!  Head,  4G0;  Whitman  v. 
Taylor,  00  Mo.  127;  Hedges  v.  Mace,  72  111.  472;  Cooley  v.  Wilson,  42 
Iowa,  428;  DeForest  v.  Farley,  62  N.  Y.  628;  Byers  v.  Fowler,  12  Ark. 
218;  s.  C,  54  Am.  Dec.  271;  Sydnor  v.  Roberts,  13  Tex.  .508;  s.  c,  G.') 
Am.  Dec.  84;  Millis  v.  Lombard,  32  Minn.  259;  s.  c,  I'J  N.  W.  Rep. 
187;  Wallace  v.  Loomis,  97  U.S.  146;  Fit/.patrick  v.  Peabody,  51  Vt. 
195;  Casey  v.  Gregory,  13  B.  Mon.  505;  s.  c,  56  Am.  Dec.  581 ;  Walker 
V.  McKnight,  15  B.  Mon.  467;  s.  c,  61  Am.  Dec.  190;  Gibson  v.  Lyon, 
115  U.  S.  439;  Beidler  v.  Friedell,  44  Ark.  411;  Walker  v.  Gohlsmilh,  14 
Oreg.  125;  Fowler  v.  Poor,  93  N.  C.  466;  Edwards  v.  Ilalljcrt,  64  Tex. 
667. 

2  Harris  v.  Lester,  80  111.  307;  Price  v.  Winter,  15  Fia.  606;  Miilford  v. 

45 


§    22  VOID    JUDICIAL    SALES. 

sale  made  under  a  decree  must  pursue  the  directions  therein 
contained,  that  a  departure  from  these  directions  renders 
the  sale  void.^  But  to  invoke  this  rule,  the  departure  must 
be  of  a  very  material  character;  and  must,  we  think,  be  a 
departure  which  has  not  been  approved  by  a  decree  of  con- 
firmation entered  in  the  court  which  ordered  and  had  super- 
vision of  the  sale.^ 

§  22.  Failure  to  Grive  Additional  Bond,  or  to  Take 
Oath  Concerning-  the  Sale. — The  granting  of  a  license  to 
sell  real  estate  imposes  a  duty  and  also  a  pecuniary  respon- 
sibility on  the  guardian  or  administrator,  in  addition  to  the 
duty  and  responsibility  otherwise  attached  to  his  office. 
This  duty  is  to  use  his  best  efforts  to  make  an  advantageous 
sale  of  the  property.  This  responsibility  is  to  properly 
account  for  and  pay  over  the  proceeds  of  the  sale.  To  in- 
sure a  greater  fidelity  in  performing  this  duty,  some  statutes 
have  prescribed  an  oath  to  be  taken  before  entering  upon 
any  of  the  proceedings  necessary  to  precede  the  sale.  To 
provide  against  any  misappropriation  of  the  proceeds  of  the 
sale,  the  statutes  very  generally  exact  an  additional  bond 
from  the  guardian,  executor  or  administrator.  The  fact 
that  a  sale  was  made,  or  that  the  time  or  place  thereof  was 
selected  in  advance  of  the  taking  of  this  oath,  has,  in  every 
case  coming  within  our  observation,  been  decided  to  be 
fatal  to  the  purchaser's  title. ^  The  same  conclusion  has 
been  reached  in  several  cases  where  sales  were  made  without 
the  giving  of  the   additional  bond.*     In  most  of  the  cases 

Bevei-idge,  78  111.  455;  Patterson  v.  Lemon,  50  Ga.  231 ;  Gage  v.  Schro- 
der, 73  111.  44;  Spring  v.  Kane,  86  111.  580;  Goodbody  v.  Goodbody,  95 
m.  456;  Moody  v.  Butler,  63  Tex.  210. 

1  Williamson  v.  Berry,  8  How.  (U.  S.)  544;  Jarboe  v.  Colvin,  4  Bush, 
70;  Gofer  v.  Miller,  7  Bush,  545. 

2  Welch  V.  Louis,  31  111.  446;  McGavock  v.  Bell,  3  Caldw.  512. 

3  Campbell  v.  Knights,  26  Me.  224;  s.  c,  45  Am.  Dec.  107;  Wilkinson 
V.  Filby,  24  Wis.  441 ;  Parker  v.  Nichols,  7  Pick.  Ill ;  Blackman  v.  Bau- 
man,  22  Wis.  611;  Williams  v.  Reed,  5  Pick.  480;  Cooper  v.  Sunderland, 
3  Iowa,  114;  s.  C,  66  Am.  Dec.  52;  Thornton  v.  Mulquinne,  12  Iowa,  549. 

^  Wiley  V.  White,  3  Stew.  &  P.  355;  Currie  v.  Stewart,  26  Miss.  646; 

46 


VOID    JUDICIAL    SALES.  §   22 

where  sales  were  held  void  for  the  failure  to  take  the  oath 
or  to  orive  the  bond,  thev  had  been  confirmed  by  the  court. 
Upon  principle,  the  failure  to  Hie  an  additional  bond  must 
be  regarded  as  an  irregularity  merely.  After  the  confirma- 
tion and  the  payment  of  the  money,  tliis  failure  cannot  avoid 
the  sale.^  In  New  York,  the  filing  of  the  original  bond,  on 
the  granting  of  letters  of  administration,  is  not  a  jurisdic- 
tional matter.-  The  issue  of  letters  without  it  is  valid. 
The  failure  of  a  master  in  chancery  to  file  his  bond,  cannot 
be  raised  in  a  collateral  suit  to  avoid  a  sale  made  by  him 
and  confirmed  by  the  court. -^ 

In  Indiana,  a  sale  made  without  giving  the  bond  required 
cannot  be  avoided  collaterally  when  made  by  a  guardian,  if 
he  has  duly  accounted  for  the  proceeds.  If,  on  the  other 
hand,  such  proceeds  have  been  lost  to  the  ward,  owing  to 
the  omission  of  the  bond,  he  may  treat  the  sale  as  void.* 
It  thus  appears  to  be  the  duty  of  the  purchaser  in  that 
State  either  to  assure  himself  that  the  requisite  bond  has 
been  given,  or  else  to  take  measures  looking  to  the  proper 
application  of  the  proceeds  of  the  sale.  In  some  of  the 
States  the  legislature  has,  by  statute,  declared  that  probate 
sales  shall  not  be  avoided  on  account  of  "any  irregularity 
in  the  proceedings,  provided  it  should  appear:  1,  that  the 
executor  was  licensed  to  make  the  sale  by  the  count}^  court 
having  jurisdiction  ;  2,  that  he  gave  a  bond  that  was  ap- 
proved by  the    judge  of  the  county  court,  in  case  a  bond 

Babcock  v.  Cobb,  11  Minn.  '.U7;  Rucker  v.  Dyer,  44  Miss.  591 ;  Perkins 
V.  Fairfield,  11  Mass,  226;  Cobea  v.  State,  34  Miss.  178;  llamiltou  v. 
Lockhart,  41  Miss.  460;  Wasbington  v.  McCaughan,  34  Miss.  394;  Will- 
iams v.  Morton,  38  Me.  47;  s.  C,  61  Am.  Dec.  229;  Barnett  v.  Bull,  81 
Ky.  127;  Williamson  v.  Williamson,  3  S.  &  M.  715;  s.  c,  41  Am.  Dec. 
636.  For  application  of  a  similar  rule  in  partition  suits,  see  Freeman 
on  Cotenancy  and  Partition,  sec.  466. 

1  Foster  v.  Birch,  14  In(1.445;  Lockhart  v.  John,  7  Pa.  St.  137;  Arrow- 
smith  v.  Harmoning,  42  Ohio  St.  2.54;  Moody  v.  Butler,  03  Tex.  210; 
Hamiel  v.  Donnelly,  39  N.  W.  Kep.  210  (Iowa). 

•'  Bloom  V.  Burdick,  1  Hill,  130;  s.  c,  37  Am.  Dec.  299. 

3  Nicholl  V.  Xicholl,  S  Paige,  349. 

*  McKeever  v.  Ball,  71  Ind.  398. 

47 


§    23  VOID    JUDICIAL    SALES. 

was  required,  upon  granting  a  license;  3,  that  he  took  the 
oath  therein  prescribed;  4,  that  he  gave  notice  of  the  time 
and  place  of  sale  as  therein  prescribed;  and  5,  that  the 
premises  were  sold  accordingly,  and  the  sale  confirmed  by 
the  court,  and  that  they  were  held  by  one  who  purchased 
them  in  good  faith,"  ^  These  statutes,  while  professedly 
in  the  interest  of  purchasers  in  good  faith  at  probate  sales, 
probably  operate  to  the  contrary,  as  they  seem  to  recognize 
five  classes  of  irregularity  as  fatal,  when  only  the  first  of 
the  five  was  clearly  and  necessarily  fatal,  independent  of 
such  statute.  In  States  controlled  by  these  or  similar 
statutes,  we  see  no  escape  from  the  conclusion  that  a  sale, 
made  in  the  absence  of  the  bond  required  by  law,  or  the 
order  of  the  court,  is  void.  But,  unless  supported  by  some 
statute,  the  decisions  declaring  that  the  failure  to  give  such 
bond  nullities  the  sale,  arc  not  sustainable  at  all.  The 
jurisdiction  of  the  court  is  in  nowise  connected  w^ith  the 
giving  of  the  bond;  and  the  omission  of  such  bond  is  man- 
ifestly a  simple  irregularity  affording  suflicieut  reason  for 
refusing  to  approve  the  sale,  but  of  no  consequence  to  a 
purchaser  in  good  faith,  except  in  so  far  as  it  may  lead 
the  court  to  withhold  its  approval  of  his  purchase.^ 

§  23.  Tlie  Necessity  for  a  Valid  Execution. — Though  a 
judgment  at  law  is  entered,  no  officer  has  any  authority  to 
enforce  it  without  a  writ  of  execution.  A  sale,  when  no 
such  writ  had  issued,  would,  unquestionablj',  be  void.  In 
chancery,  the  decree  of  sale  may  of  itself  constitute  a  suf- 
ficient authority  for  its  own  execution.^  The  usual  custom 
in  chancery  is  to  deliver  a  certified  copy  of  the  decree  to 
the  person  charged  by  the  court  or  by  law  with  the  duty  of 
making  the  Bale.     Under  the  practice  for   the    foreclosure 

1  Melms  V.  Pfister,  59  Wis.  194. 

2  Wyman  v.  Oampbell,  6  Porter,  319;  s.  C,  31  Am.  Dec.  677;  Palmer 
V.  Oakley,  2  Doug.  (Mich.)  433;  s.  c,  47  Am.  Dec.  41 ;  Bunce  v.  Bunce, 
59  Iowa,  533;  Watts  v.  Cook,  24Kans.  27S;  Mobberly  v.  Johnson,  78  Ky. 
273;  McKinney  v.  Jones,  55  Wis.  39. 

3  Karnes  v.  Harper,  48  111.  527.    See  Freeman  on  Ex.,  see.  47a. 

48 


VOID    JUDICIAL    SALES.  §    24 

of  mortorajzes  in  California,  the  sheriff  is  authorized  to  pro- 
ceed  on  receivino^  an  execution  or  a  certified  copy  of  the 
decree.  If  he  acts  in  the  absence  of  both,  his  acts  are 
void.^  Some  of  the  statutes  require  copies  of  orders  of  sale 
in  probate  to  be  delivered  to  the  administrator  or  guardian 
as  his  authority  to  sell,  and  others  contain  no  direct  provis- 
ion on  the  subject.  We  have  never  known  of  a  sale  being 
questioned  on  the  ground  that  no  copy  of  the  license  to  sell 
had  been  delivered  to  the  administrator.  An  execution  is 
invalid  and  cannot  support  a  sale,  unless  it  is  issued  out  of 
a  court,^  and  by  an  officer^  competent  to  issue  it.  It  must 
also  be  on  a  judgment  capable  of  enforcement  by  execution. 
The  judgment  must  not  be  void  nor  satisfied.*  The  defend- 
ant in  execution  must  also  be  a  person  or  corporation 
against  which  an  execution  may  issue. ^  The  execution  must 
not  be  forged,  either  wholly  nor  in  any  material  part.^ 

§  24.  The  Times  when  Execution  May  Not  Issue. — By 
some  statutes  a  plaintiff's  right  to  execution  does  not  exist 
immediately  after  the  entry  of  the  judgment,  but  remains 
in  abeyance  a  specified  period  of  time.      The  issue  of  exe- 

1  Heyman  v.  Babcock,  30  Cal.  367. 

2  Freeman  on  Executions,  sec.  15.  After  a  court  lias  been  abolished, 
an  execution  purporting  to  be  issued  out  of  it  is  a  nullity.  Harris  v. 
Corriell.SOIll.  .54. 

3  Freeman  on  Executions,  sec.  23. 

4  lb.,  sees.  19  and  20.  TLat  a  sale  under  a  satisfied  judgment  is  void, 
is  affirmed  in  French  v.  Edwards,  5  Saw.  C.  C.  266;  Drefall  v.  Tuttle,  42 
Iowa,  77;  Finley  v.  Gant,  8  Baxter,  148;  Wood  v.  Colvin,  2  Hill.  500;  s. 
C,  38  Am.  Dec.  588;  Frost  v.  Yonker's  S.  B.,  70  N.  Y.  500;  Doe  v.  lu- 
gersoll,  11  S.  &  M.  249;  s.  c,  49  Am.  Dec.  57;  Murrell  v.  Roberts,  11 
Ired.  424;  s.  c.,53  Am.  Dec.  449.  In  some  States,  such  sales  are  upheld 
in  favor  of  innocent  purchasers.  Van  Campen  v.  Snyder,  3  How  (Miss.) 
66;  s.  C,  32  Am.  Dec.  311 ;  Hoffman  v.  Strohecker,  7  Watts,  86;  s.  c,  32 
Am.  Dec.  740;  Reed  v.  Austin,  9  Mo.  722;  S.  C,  45  Am.  Dec.  336;  Boren 
v.  McGeehee,  6  Porter,  432;  s.  C,  31  Am.  Dec.  095.  A  purchaser  buy- 
ing at  a  sale  under  a -satisfied  judgment,  with  notice  of  facts  sulllcieut. 
to  put  him  upon  inquiry,  unquestionably  gets  no  title.  Kezar  v.  Elkius, 
52  Vt.  119;  Weston  v.  Clark,  37  Mo.  573. 

Freeman  on  Executions,  sec.  22. 
6  lb.,  sec.  23.  47;  Silvan  v.  Coffee,  20  Tex.  4;  s.  C,  70  Am.  Dec.  371. 

49 


§   24  VOID    JUDICIAL    SALES. 

cution  before  the  expiration  of  this  time  is,  in  most  States, 
a  mere  in-e^ularity,  not  of  sufficient  gravity  to  render  the 
sale  void.i  The  same  rule  is  usually  applied  to  writs  issued 
contrary  to  agreement  or  pending  a  stay  of  execution. 
They  will  be  vacated  on  motion.  But  if  the  defendant 
takes  no  steps  to  obtain  their  vacation,  or  to  set  aside  sales 
made  thereunder,  the  latter  will  be  treated  as  valid. ^  This 
remark  is  equally  true  of  writs  issued  and  sales  made  in 
disobedience  of  injunctions.^  At  common  law,  execution 
could  not  regularly  issue  after  a  year  and  a  day  subsequent 
to  the  entry  of  judgment,  without  a  revivor  by  scire  faciaf^. 
A  writ  issued  in  violation  of  this  rule  is  not  void.*  So,  at 
common  law,  an  execution  could  not  regularly  issue  without 
revivor  of  the  judgment  by  scii-e  facias,  after  the  death  of 
a  sole  plaintiff  or  of  a  sole  defendant.  The  issue  of  a 
writ,  in  violation  of  this  rule,  is  a  more  serious  matter  than 
its  issue  on  a  dormant  judgment.  If  an  execution  is  issued 
and  tested  after  the  death  of  a  sole  plaintiff,  the  authori- 
ties are  very  evenly  divided  upon  the  question  whether  it  is 
void  or  irregular  only.^  But  if  it  issues  and  bears  teste, 
after  the  death  of  a  sole  defendant,  the  authorities  almost, 
but    not    quite    unanimously,  adjudge    it    void.*^     But    the 


1  Freeman  on  Executions,  sec.  25;  Stewart  v.  Stocker,  13  Serg.  &  R. 
199;  s.  C,  1.5  Am.  Dec.  589.  But  in  Massachusetts  a  premature  writ  is 
void.     Penniman  v.  Cole,  8  Mete.  496. 

2  Freeman  on  Executions,  sees.  26,33;  Swiggart  v.  Harber,  4  Scam. 
364;  s.  C,  39  Am.  Dec.  418. 

3  Rikeman  v.  Kohu,  48  Ga.  183;  Bagley  v.  Ward,  37  Cal.  121;  s.  c,  99 
Am.  Dec.  256. 

*  Freeman  on  Executions,  sees.  29,  30;  Riddle  v.  Turner,  52  Tex.  145. 
Contra:  Godbold  v.  Lambert,  8  Rich.  Eq.  155;  s.  c,  70  Am.  Dec.  192; 
Hoskins  v.  Helm, 4  Litt.  309;  s.  c,  14  Am.  Dec.  133. 

^  Freeman  on  Executions,  sec.  35. 

6  lb.,  sec.  35;  Clingman  v.  Hopbie,  78  111.  152;  Welch  v.  Rattern,  47 
,Iowa.  147;  Collier's  Admr.  v.  Widdham,  27  Ala.  291;  s.  c,  62  Am.  Dec. 
767;  Montgomery  v.  Realhafer,  85  Tenn.  668;  s.  C,  4  Am.  St.  R.  780; 
Cunningham  v.  Burk,  45  Ark.  267;  Boyle  v.  Maroney,  73  Iowa, 
70;  5  Am.  St.  R.  657;  Burge  v.  Brown,  5  Bush,  535;  96  Am. 
Dec.  369;  Blanks  v.  Rector,  24  Ark.  496.     In  other  cases  writs  so  issued 

50 


VOID    JUDICIAL    SALES.  §   25 

death  of  one  of  several   plaintiffs    or    defendants    neither 
suspends  nor  destroys  the  right  to  issue  execution. ^ 

If  an  execution  issue  after  a  judgment  is  pronounced  and 
before  its  entry  by  the  clerk,  the  writ  is  not  void.  If 
necessary  to  maintain  proceedings  taken  under  the  \Yrit,  the 
court  would  doubtless  order  the  entry  of  the  judgment  mow 
pro  tunc-  If,  however,  the  writ  issues  in  anticii)ation  of 
a  judgment  not  yet  ordered  by  the  court,  or  upon  a  judg- 
ment of  confession  not  yet  perfected  by  the  clerk,  a  more 
serious  question  arises.  In  such  a  case  the  writ,  at  the  time 
of  its  issue  and  until  the  judgment  is  pronounced  or  per- 
fected, is  unquestionably  void;  and  it  seems  that  no 
validity  can  be  infused  into  the  writ  by  the  subsequent 
rendition  of  the  judgment. ^  In  some  of  the  States,  execu- 
tions may  be  issued  by  the  clerk  of  a  superior  court  upon 
transcripts  of  judgments  of  justices  of  the  peace.  The 
substantial  performance  of  the  various  acts  designated  by 
statute,  with  respect  to  the  transcript  and  the  tiling  thereof , 
appear  to  be  essential  to  the  issuing  of  the  writ  and  the 
maintainance  of  titles  founded  ui)on  it.*  The  issue  of  a 
venditioni  exponas  when  a  fieri  facias  was  ordered  is  a 
nullity.  "The  clerk  has  no  power  to  issue  any  other  writ 
than  that  prescribed  in  the  judgment."  •'"' 

§  25.  Writs  of  Execution  31  list  be  Sufficient  in 
Form. — The  necessity  for  a  writ  of  execution  cannot  be 
answered  by  a  writ,  called  by  that  name,  but  substantially 
defective  in  form.  It  must  at  least  puri)ort  to  proceed  from 
some  competent  authority;  nmst  show  what  judgment  it  is 

were  adjudged  to  be  voidable  only,  and  not  void.  Shelton  v.  Hamilton, 
23  Miss.  4IJG;  ')!  Am.  Dec.  149;  Harrington  v.  O'JUilly,  9  S.  &  M.  21G; 
48  Am.  Dee.  704;  Elliott's  Lessee  v.  Knott,  14  Md.  121 ;  74  Am.  Dec.  519. 

1  Freeman   on  Executions,  sec.  36.    With  respect  to  the  effect  of  the 
death  of  a  party  after  the  issue  of  the  execution,  see  lb.,  sec.  37. 

2  Graham  v.  Lynn.  4  IJ.  Mon.  17 ;  39  Am.  Dec.  493. 

3  Hathaway  v.  Howell,  54  N.  Y.  97;  s.  C,  on  second  trial,  (J  Thomp.  & 
C.  453;  4  Hun.  270. 

*  Bigelow  V.  Booth,  39  Mich.  622. 
''  Hurst  V.  Liford,  11  Heisk.  622. 

51 


§    26  VOID    JUDICIAL    SALES. 

designed  to  enforce,  and  must  direct  tiie  officer  to  execute 
or  satisfy  the  judgment.^  But  there  are  various  formal 
matters  usually  embodied  in  writs  of  execution,  and  in 
respect  of  which  an  error  or  omission  is  not  necessarily 
fatal.  Thus,  a  mistake  or  omission  in  designating  the 
return  day,-  or  in  the  attesting  clause,^  are  not  of  sufficient 
consequence  to  defeat  an  execution  sale.  In  some  courts 
an  execution,  without  a  seal  (where  one  is  required)  is 
void;  in  others  it  is  irregular  merelj'.*  The  most  frequent 
mistakes  in  the  issue  of  writs  are  made  in  attempting  to 
describe  judgments.  The  name  of  the  plaintiff  or  of  the 
defendant  may  be  incorrectly  stated,  or  the  amount  or  the 
judgment  may  vary  from  the  sura  for  which  execution 
issues.  These  mistakes  and  variances  are  amendable.  If 
no  amendment  is  made,  and  no  objection  to  the  form  of 
the  writ  is  interposed  by  a  motion  to  quash  or  vacate  it,  it 
must  be  treated  as  valid,  unless  the  variance  is  so  great 
that  it  appears  not  to  be  issued  upon  the  judgment  which 
is  produced  in  its  support.^  An  execution  not  issued  in 
the  name  of  the  people  of  the  State,  nor  directed  to  the 
sheriff,  is  amendable,  and  a  sale  thereunder  is  valid. " 

§  26.  Sales  in  the  Absence  of  I^evies. — When  a  judicial 
sale  is  made  by  virtue  of  an  order  or  license  of  sale,  no 
levy  is  necessary.  The  same  rule  holds  good  with  respect 
to  execution  sales  of  real  estate,  where  the  judgment  itself 

1  Freeman  on  Executions,  sees.  39-41. 

2  Freeman  on  Executions,  sec.  44;  Brevard  v.  Jones,  50  Ala.  221; 
Youngblood  v.  Cunningham,  38  Ark.  571. 

3  Freeman  on  Executions,  sec.  45;  Douglas  v.  Haberstrt),  88  N.  Y.  Gil ; 
Ross  v.  Luther,  4  Cow.  158;  15  Am.  Dec.  341. 

^Freeman  on  Executions,  sec.  46;  Roseman  v.  Miller,  84  111.  297; 
Taylor  v.  Taylor,  S3  N.  C.  116;  Woolford  v.  Dugan,  2  Ark.  131 ;  35  Am. 
Dec.  52,  and  note;  Corwith  v.  State  Bank,  11  Wis.  430;  78  Am.  Dec.  719. 

^  Freeman  on  Executions,  sees.  42,  43;  Harlan  v.  Harlan,  14  Lea,  107; 
Haskins  v.  Wallet,  63  Tex.  213;  Alexander  v.  Miller's  Ex.,  18  Tex.  893; 
70  Am.  Dec.  314;  Wilson  v.  Campbell,  33  Ala.  249;  70  Am.  Dec.  58(5; 
Hunt  V.  Loucks,  38  Cal.  372;  99  Am.  Dec.  404;  Hunter  v.  Roach,  95  N. 
C.  106. 

«  Hibberd  v.  Smith,  50  Cal.  511. 

52 


VOID    JUDICIAL    SALES.  §   28 

is  a  lien  on  the  real  property  of  the  defendant.  Personal 
property  must  be  levied  upon,  or  in  some  way  subjected  to 
the  control  of  the  officer,  before  a  valid  sale  can  be  made 
under  execution.^  As  between  the  parties,  the  defendan 
can  waive  a  levy.  With  respect  to  real  estate,  upon  which 
a  levy  has  neither  been  made  nor  waived,  the  authorities 
are  very  evenl}^  divided  as  to  the  validity  of  an  execution 
sale,  some  claiming  that  it  is  irregular  merely,  others  that 
it  is  void.2 

§  27.  Sales  Without  Inquisition  or  Appraisement — 
Some  statutes  require  an  inquisition  or  appraisement  of 
real  estate  to  precede  its  sale  under  execution,  and  seek  to 
avoid  the  great  sacrifice  sometimes  attending  compulsory 
sales,  by  forbidding  any  sale  which  does  not  realize  a  cer- 
tain proportion  of  the  appraised  value.  Sales  made  with- 
out any  appraisement,  or  for  a  less  proportion  of  the  ai)- 
praised  value  than  authorized  by  law,  are  usually,  but  not 
universally,  held  void.^  In  many  of  the  States,  adminis 
trators  and  guardians  are  required  to  have  property  ap- 
praised before  selling  it.  In  Missouri  and  Louisiana,  sales 
made  in  contravention  of  these  statutes  are  thought  to  be 
void;*  but  we  apprehend  that  they  should  be  declared  void- 
able merely  ;  and,  if    confirmed    by  the  court,  as    entirely 

valid. ^ 

§    -JH.      Sales  Void  for  Want  of    Notice  of   Sale. — Some 
notice  of  the  time  and  place  of  sale,  and  of  the  property  to 

1  "Xomans  v.  Bird.G  S.  E.  Rep.  179  (Ga.). 

2  Freeman  on  Executions,  sec.  274;  Friuk  v.  Roe,  70  Cal.  20G;  Gordon 
V.  Gilfoil,  99U.  S.  168;  Bledsoe  v.  Willin^liani.  62  Ga.  5.J0;  Wood  v. 
Augustine,  61  M...  46;  Elliott  v.  Knott,  14  Md.  121;  74  Am.  Dec.  .^19. 

3  Freeman  on  Executions,  sees.  284,  285;  Maple  v.  Nelson,  M  Iowa, 
322;  Brown  v.  Butters,  40  Iowa,  544.  A  sale  under  a  forged  waiver  of 
inquisition  is  void.     Zuver  v.  Clarlv,  104  Pa.  St.  222. 

4  Strouse  v.  Dreunan,  41  Mo.  298;  Curley"s  Succession,  18  La.  An.  278. 
But  a  sale  in  probate  to  pay  debts  is  not  void  in  Louisiana,  be^cause  for 
less  than  the  appraisement.  Stoltz's  Succession,  28  La.  An.  17.'.;  Ilerr- 
man  v.  Fontelieu,  29  La.  An.  .')02. 

5  Bell  v.  Green,  38  Ari^.  78;  Xeligh  v.  Keeue,  16  Neb.  407. 

5  a 


§    28  VOID    JUDICIAL    SALES. 

be  sold,  is  obviously  essential  to  the  realization  of  its  value. 
This  notice  is  commonly  required  to  be  given  by  the  statutes 
regulating  judicial,  execution  and  probate  sales.  Whether 
a  compliance  with  this  requirement  is  a  prerequisite  to  the 
power  to  sell,  is  uncertain.  Undoubtedly  a  sale,  without 
first  giving  the  proper  notice,  would  not  be  confirmed  if 
the  defect  were  known  to  the  court.  It  would  be  vacated 
on  motion,  while  the  court  had  power  to  annul  it  by  that 
kind  of  proceeding.^  Concerning  execution  sales,  "a  very 
decided  preponderance  of  the  authorities  maintains  this 
proposition  :  That  the  statutes  requiring  notice  of  the  sale 
to  be  given  are  directory  merely,  and  that  the  failure  to 
give  such  notice  cannot  avoid  the  sale  against  any  purchaser 
not  himself  in  fault."  ^  With  res])ect  to  executors',  ad- 
ministrators' and  guardians'  sales,  the  authorities  are  more 
evenly  divided.  On  the  one  hand,  they  maintain  that  the 
wiving  of  notice  for  the  time,  and  substantially  in  the  man- 
ner  directed  by  statute,  is  indispensable  to  a  valid  sale.^ 
On  the  other  hand,  they  insist  that  the  existence  of  the 
notice  and  its  sufiiciency  are  legitimate  subjects  of  inquiry, 

1  Glenn  v.  Wootten,  3  Md.  Ch.  514;  Matter  of  McFeely,  2  Eedf.  541; 
Helmer  v.  Rehni,  14  Neb.  219;  Reynolds  v.  Wilson,  15  111.  394;  60  Am. 
Dec.  753. 

2  Freeman  on  Executions,  sec.  286;  Ware  v.  Bradford,  2  Ala.  676;  36 
Am.  Dec.  427;  Brooks  v.  Rooney,  11  Ga.  423;  56  Am.  Dec.  430;  Solo- 
mon V.  Peters,  37  Ga.  255;  Howard  v.  ISrorth,  5  Tex.  290;  51  Am.  Dec. 
769;  Draper  v.  Bryson,  17  Mo.  71;  57  Am.  Dec.  257;  Minor  v.  Natchez, 
4  S.  &  M.  602;  43  Am.  Dec.  488;  Burton  v.  Spiers,  92  N.  C.  503;  Mad- 
dox  V.  Sullivan,  2  Rich.  Eq.  4;  44  Am.  Dec.  234,  and  note;  Smith  v. 
Randall,  6  Cal.  47;  65  Am.  Dec.  475;  Evans  v.  Robberson,  92  Mo.  192;  1 
Am.  St.  R.  701;  Hendrick  v.  Davis,  27  Ga.  167;  73  Am.  Dec.  726. 
Contra.  Hughes  v.  Watt,  26  Ark.  228;  Lafferty  v.  Conn,  3  Sneed,  221; 
Herrick  v.  Ammerman,  32  Minn.  544;  Prater  v.  McDonough,  7  Lea,  670; 
Henderson  v.  Hays,  41  N.  J.  L.  387;  Hinson  v.  Hinson,  5  Sneed,  322;  73 
Am.  Dec.  129.  For  form  and  contents  of  notices  of  sale,  see  the  note 
to  Hoffman  v.  Anthony,  75  Am.  Dec.  704  to  713. 

3  Thomas  v.  Le  Barron,  8  Mete.  363;  Curley's  Succession,  18  La.  An. 
728;  Blodgett  v.  Hitt,  29  Wis.  169;  Mountour  v.  Purdy,  11  Minn.  384; 
Gernon  v.  Bestick,  15  La.  An.  697;  Hobart  v.  Upton,  2  Saw.  C.  C.  302; 
l7i  re  Hartley.  37  X.  W.  Rep.  449  (Minn.). 

54 


VOID    JUDICIAL    SALES.  §   29 

when  the  sale  is  reported  for  confirmation,  but    not   after- 
wards.^ 

There  seems  to  be  more  reason  for  sustaining  probate 
sales,  made  upon  insufficient  notice  or  without  an}-  notice 
whatever,  than  for  sustaining  sales  so  made  upon  execution, 
because  the  latter  are  not  usually  brought  before  the  court 
for  confirmation,  while  the  former  are  reported  to  and  con- 
sidered by  the  court,  and  are  not  to  be  approved  unless 
the  proceedings  are  fair  and  regular.  To  attack  a  probate 
sale  after  confirmation,  for  the  purpose  of  showing  the  ab- 
sence of  or  defects  in  the  notice,  involves  the  re-examina- 
tion of  an  issue  which  has  been  once  heard  and  determined 
by  a  court  of  competent  jurisdiction,  and  the  re-examina- 
tion of  which  ought  therefore  to  be  forbidden. 

§  29.  By  Wlioin  the  Sale  3Iay  l>e  Made. — When  a  sale 
is  to  be  made  under  a  decree  in  chancery,  the  court  may 
appoint  some  one  as  its  ageut  or  commissioner  and  invest 
him  with  power  to  make  the  sale.^  A  sale  under  execution 
must  be  made  by  a  sheriff  or  constable,  unless  he  is  dis- 
qualified to  act.  So  an  administrator's  sale  must  be  made 
by  or  under  the  direction  of  the  administrator.  The  court 
cannot  appoint  some  other  person  to  make  the  sale.'^  Nor 
can  an  executor  appoint  some  person  in  his  stead  to  exercise 
a  power  of  sale  contained  in  the  will.*  An  administrator's 
or  commissioner's  sale,  at  which  he  was  not  present,  and 
conducted  by  his  agent,  is  voidable,  if  not  void.'^  It  seems 
to  always  be  essential  that  the  person  making  a  sale  in  an 

1  Morrow  v.  Weed,  4  Iowa,  77;  66  Am.  Dec.  122;  Little  v.  Sinnett,  7 
Iowa,  324;  Minor  v.  Selectmen,  4  S.  «&  M.  602;  Bland  v.  Muncaster,  24 
Miss.  62;  57  Am.  Dec.  162;  Hanks  v.  Neal,  44  Miss.  212;  McNair  v. 
Hunt,  .5  Mo.  301 ;  Cooley  v.  Wilson,  42  Iowa,  428;  Iludgen.s  v.  Jackson, 
51  Ala.  514;  Motlit  v.  MolRt,  69  111.  641. 

2  Freeman  on  Executions,  sec.  291. 

3  Crouch  V.  Eveleth,  12  Mass.  503;  Swan  v.  Wtieeler,  4  Day,  137;  Jar- 
vis  V.  Russick,  12  Mo.  63;  Rose  v.  Xewman,  26  Tex.  131;  State  v. 
Founts,  89  Ind.  313. 

*  Pearson  v.  Jamison,  1  McLean,  197. 

5  Chambers  v.  Jones,  72  111.  275;  Sebastian  v.  Johnson,  72  111.  282. 

ryf)  ( ^y ) 


§   30  VOID    JUDICIAL    SALES. 

official  capacity  be  at  least  an  officer  de  facto,  and  as  such 
authorized  to  act  in  the  particular  case.     A  sheriff  or  con- 
stable   has    no    authority    to    act  under  a  writ  directed  to 
another  sheriff  or  constable,  and  a  sale  made  by  him  is  void.^ 
So  a  sale  made  by  an  ex-sheriff,  in  a  case  where  the  sheriff 
in  office  ou^ht  to   have  acted, ^  or  by   the   sheriff  in  office 
where  the  ex-sheriff  ought  to  have  acted ,3  is  without  author- 
ity of  law  and  void.     The   division  of  a  county  after  the 
levy  on  an  execution  does  not  devest  the  sheriff  levying  the 
writ  of  power  to  make  the  sale.*     A  sheriff  is  incompetent 
to  execute  a  writ  to  which  he  is  a  party.     A  sale  made  by 
him  under  a  judgment  in  his  favor  is  a  nullity .^     The  rule 
pronouncing  sales  void  when  conduced  by  officers  having  no 
authority    to    make    them,     may  operate  harshly  in  some 
instances,  but  it  is    justified  on  the  ground  that  the  officer 
is  known  not  to  be  acting  for  himself,  but  as  an  agent,  and 
that  it  is  always  the  duty  of  a  person,  dealing  with  one  who 
assumes  to  act  as  an  agent,   to  ascertain,   at  his   peril,  the 
existence  of  the  latter' s  authority. 

§  30.  At  What  Time  a  Sale  May  be  Made. — Of  course 
no  judicial  or  execution  sale  ought  to  take  place  at  any 
other  time  than  that  fixed  by  the  notice  of  sale;  and  the 
notice  of  sale  ought  not  to  fix  upon  any  time  prohibited  by 
law.  A  sale  made  in  violation  of  this  rule  will,  no  doubt, 
be  vacated  or  refused  confirmation  if  the  irregularity  is 
suggested  to  the  court  at  the  proper  time.  It  is  not,  how- 
ever, void  in  most  States.^  In  Texas,  a  sale  made  at  a  time 
different  from  that  allowed  by  law   cannot   be  collaterally 

1  Bybee  V.  Ashby,  2  Gilm.  151;  s.  c,  43  Am.  Dec.  47;  Gordon  v. 
Camp,  3  Pa.  St.  349;  s.  c,  45  Am.  Dec.  647. 

2  Bank  of  Tenn.  v.  Beatty,  3  Sneed,  305;  s.  c,  65  Am.  Dec.  58. 

3  Purl  V.  Duvall,  5  H.  &  J.  69;  s.  c,  9  Am.  Dec.  490. 
*  Lofland  v.  Ewing,  5  Litt.  42;  s.  C,  15  Am.  Dec.  41. 

sCollaisv.  McLeod,  Sired.  221;  s.  c,  49  Am.  Dec.  376;  Bowen  v. 
Jones,  13  Ired.  25. 

6  Freeman  on  Executions,  sec.  287.  Contra,  Mayers  v.  Carter,  87  N. 
C. 146. 

56 


VOID    JUDICIAL    SALES.  §    30 

attacked  after  its  confirmation.^  But  if  the  irregularity  be 
not  thus  cured  by  confirmation,  the  sale  is  void.-  It  is 
always  essential  that  a  sale  be  made  under  a  valid,  subsist- 
ing authority.  A  sale  made  when  such  authority  had  been 
destroyed  by  lapse  of  time  would  everywhere  be  treated  as 
void.  If  the  statute,  under  which  a  license  to  sell  is  granted, 
limits  the  operation  of  the  license  within  a  designated 
period,  a  sale  outside  of  the  prescribed  limit  is  a  nul- 
lity.^ In  some  instances  licenses  to  sell  have  been  held  to 
have  lost  their  vitality  through  lapse  of  time,  although  the 
statute  had  not  directly  prescribed  any  such  limit  to  their 
power.*  If  the  act  under  which  an  order  of  sale  has  been 
granted  is  repealed,  or  the  court  in  which  it  was  entered  is 
abolished,  its  legal  vitalit}'  is  destroyed,  and  it  cannot  support 
a  subsequent  sale.^  An  execution  cannot  be  legally  levied 
after  the  return  day  thereof,  and  if  a  levy  is  attempted 
after  such  return  day  and  is  followed  by  a  sale,  both  the 
levy  and  sale  are  void.^  But,  by  the  common  law,  the  levy 
of  an  execution  creates  a  special  property  in  the  sheriff, 
and  by  virtue  of  such  property  he  may  proceed  to  sell  after 
the  return  day  of  the  writ,  as  well  as  before.  This  is 
unquestionably  true  with  respect  to  personal  property.  A 
levy  on  real  estate,  however,  creates  no  special  property 
therein,  and  great  contrariety  of  opinion  has  developed  con- 
cerning the  power  of  officers  to  make  sales  thereof  after  the 
return  day  of  writs  on  levies  made  before  such  time.  The 
weight  of  the  authorities  favors  the  validity  of  such  sales." 

1  Brown  v.  Christie,  27  Tex.  75;  s.  c,  84  Am.  Dec.  607. 

2  Peters  v.  Caton,  6  Tex.  556;  Tippett  v.  Mize,  30  Tex.  365;  s.  c.,94 
Am.  Dec.  313.     Howard  v.  North,  5  Tex.  290;  s.  C,  51  Am.  Dec.  769. 

3  Macy  V.  Raymond,  9  Pick.  285;  Marr  v.  Boothby,  19  Me.  150;  Mason 
V.  Ham,  36  Me.  573 ;  Williamson  v.  Williamson,  52  Miss.  725. 

*  Wellman  v.  Lawrence,  15  Mass.  326.  In  this  case  the  sale  was  made 
fifteen  years  subsequent  to  the  license. 

«  McLaughlin  v.  Janney,  6  Gratt.  609;  Perry  v.  Clarkson,  16  Ohio,  571 ; 
Bank  v.  Dudley,  2  Pet.  493. 

6  Jefferson  v.  Curry,  71  Mo.  85;  Logsdon  v.  Spevey,  54  111.  104. 

'  Freeman  on  Executions,  sec.  106;  Blair  v.  Comptou,  33  Mich.  414; 

57 


§   32  VOID    JUDICIAL    SALES. 

§  31.  Sales  Made  at  an  Improper  Place  are  sometimes 
held  to  be  irregular  merely,  but  more  frequently  are  ad- 
judged void.^  Execution  sales  of  real  estate  must  be  made 
in  the  county  where  it  is  situate,  and  by  an  officer  of  such 
county  ;^  but  a  commissioner  in  chancery  may  be  authorized 
to  sell  real  estate  beyond  the  limits  of  the  county  in  which 
he  was  appointed. ^  Personal  property,  capable  of  being 
examined  and  inspected,  must,  if  possible,  be  at  or  near  the 
place  of  sale.  Bidders  must  be  permitted  to  view  it,  and,  by 
the  exercise  of  their  various  senses,  to  judge  of  its  character 
and  value.  Any  other  rule  would  tend  to  a  wanton  sacrifice 
of  the  property.  Hence,  a  sale  of  personal  property,  at  a 
place  where  it  cannot  be  examined  or  seen,  is  a  nulity.* 

§  32.  Sales  Not  at  Public  Auction. — Execution  sales 
must  be  made  at  public  auction.  Probate  and  other  judicial 
sales  are  generally  controlled,  in  this  respect,  by  the  direc- 
tions contained  in  the  license  or  decree.  Whenever,  by  law 
or  by  direction  in  an  order  of  sale,  property  is  required  to 

Wyant  V.  Tuthill,'l7  Neb.  495;  s.   c,  23  N.  W.  Eep.  342;  Johnson  v. 
Bemis,  7  Neb.  224;  Kane  v.  McCown,  55  Mo.  181;  Phillips  v.   Dana,  3 
Scam.  551;  Pettingill  v.  Moss,  3  Minn.  222;  s.  C,  74  Am.  Dec.  747 
note  to  Young  V.  Smith,  76  Am.  Dec.  81 ;  Stein  v.  Chambless,  18  Iowa,  474 
87  Am.  Dec.  411;  Childs  v.  McChesney,  20  Iowa,  431 ;  S9  Am.  Dec.  545 
Eose  V.  Ingram,  98  Ind.  276.     Contra,  Sheppard  v.  Khea,  49  Ala.  125 
Paine  v.  Hoskins,  3  Lea,  284;  Smith  v.  Mundy,  18  Ala.  182;  s.  C,  52 
Am.  Dec.  221;  Kogers  v.  Caw^ood,  1  Swan,  143;  s.  c,  55  Am.  Dec.  739; 
Mitchell  V.  Ireland,  54  Tex.  301 ;  Williamson  v.   Williamson,   52  Miss. 
725. 

1  Freeman  on  Executions,  sec.  289;  Murphy  v.  Hill,  77  Ind.  129. 
Paulsen  v.  Hall,  39  Kaus.  365;  Hall  v.  Ray,  40  Vt.    576;    s.  c,  94  Am. 

Dec.  440. 

2  Freeman  on  Executions,  sec.  289 :  Morrell  v.  Ingle,  23  Kans.  32; 
Menges  v.  Oyster,  4  W.  &  S.  20;  s.  c,  39  Am.  Dec.  56;  Thacker  v. 
Devol,  50  Ind.  30;  Hanby  v.  Tucker,  23  Ga.  132;  s.  C,  68  Am.  Dec.  514. 

3  Bank  v.  Trapier,  2  Hill  Ch.  25. 

4  Freeman  on  Executions,  sec.  209 ;    Collins  v.  Montgomery,  2   N.  & 
McC.  39;   Kennedy  v.  Clayton,  29  Ark.  270.     Contra,  where  valid  levy 
has  been  made;  Eads  v.  Stephens,  63  Mo.  90.     And  in  Alabama,  an  ex- 
ecution  sale  of  goods  not  present  thereat,  is  voidable  only.    Foster  v 
Mabe,  4  Ala.  402;  s.  c,  37  Am.  Dec.  749. 

58 


VOID    JUDICIAL    SALES.  §   32 

be  sold  at  public  auction,  a  private  sale  thereof  is  invalid.^ 
There  are  cases   which   seem  to  sustain  the   view   that  an 
execution  sale  cannot  be  made,  unless  there  are  bidders  or 
by-standers  present  other  than  the  officers  conducting  the 
sale  and  the  parties  to  the  suit;   and  that  a  sale  made  to  the 
judgment  creditor,  when  there  is  no  one  present  but  himself 
and  the  sheriff,  is  a  nulity.-     The  decision  was  placed  upon 
the  ground  that  the  presumption  of    collusion  between  the 
purchaser  and  officer    was  "  irresistable  and  conclusive." 
If  there  were  any  circumstances  tending  to  show  that  no 
sufficient  notice  of  the  sale  was  given,  or  that  anything  was 
done  to  prevent  intending  purchasers  from  attending  the 
sale,  then,  in  the  event  of  plaintiffs  purchasing,  and  espe- 
cially if  the  purchase  was  for  a  decidedly  inadequate  sum, 
there  might  be  sufficient  reason,  in  the  interest  of  sound 
public  policy,  for  presuming  a  collusion  and  permitting  this 
presumed  collusion  to  vitiate  the  sale.     But  we  know  of  no 
means  by  which  the  plaintiff  in  execution,  or  the  officer  con- 
ducting the  sale,  can  compel  the  attendance    eithei-  of  by- 
standers or  of  competing  bidders,  and  are,  therefore,  unable 
to  concur  in  the  opinion  that  a  sale   in   their   absence  is 
irresistible  or   conclusive  evidence  of  collusion,  or  is  any 
adequate  ground  for  pronouncing  such  sale  void,  though  we 
concede  that,  in  the  event  of  a  gross  inadequacy  in  the  sum 
bid,  or  of  any  suspicious  circumstances  whatever,  the  fact 
that  the  sale  took  place  without  the  presence  of  bidders  or 
by-standers  might  well  justify  a  court  in  setting  it  aside. 

It  has  been  held  that  the  bid  must  be  made  at  the  time  of 
the  sale  ;  that  if  the  officer,  receiving  an  offer  of  a  desig- 


1  Hutchinson  v.  Cassidy,  46  Mo.  4:51;  Ellet  v.  Taxson,  2  W.  &  S.  418; 
Fambro  v.  Gantt,  12  Ala.  298;  Wier  v.  Davis,  4  Ala.  442;  McArtliur  v. 
Carrie,  32  Ala.  75;  Gaines  v.  De  La  Croix,  6  Wall.  719;  Neal  v.  Patter- 
son. 40  Ga.  303;  Ashurst  v.  Ashuist,  15  Ala.  781;  VVorten  v.  Howard,  2 
S.  &  M.  527.  Contra,  Wynns  v.  Alexander,  2  D.  &  B.  Eq.  5S;  'i'yneli  v. 
Morris,  1  D.  &  B.  Eq.  .559. 

2  Rirketts  v.  Ungangst,15  Pa.  St.  90;  s.  c,  53  Am.  Dec.  572;  Michael 
V.  McDermott,  17  Pa.  St.  3.53;  s.  c,  55  Am.  Dec.  .560. 

59 


§   33  VOID    JUDICIAL    SALES. 

nated  sum  before  the  sale,  at  the  sale  accepts  and  cries  such 
offer,  and  makes  a  sale  in  pursuance  of  such  offer,  that  the 
sale  is  void.^  This  decision  is  best  justified  on  the  ground 
that  the  bid  in  question  being  made  and  accepted  in  tlie 
absence  of  the  bidder,  could  only  be  made  through  the  in- 
strumentality of  the  officer  acting  on  behalf  of  the  bidder, 
and  that  the  law  does  not  permit  the  officer  to  act  as  the 
agent  of  the  purchaser. 

§  33.  Sales  to  Persons  Disqualified  From  Purchas- 
ing.— The  policy  of  the  law  is  not  to  permit  the  same  per- 
son to  represent  conflicting  interests.  Hence,  trustees, 
sheriffs,  constables,  administrators,  executors,  guardians, 
and  all  persons  vested  with  authority  to  sell  the  property  of 
others,  are  themselves  forbidden  from  becoming  interested 
in  the  sale.  A  sale  made  in  violation  of  this  rule  will 
always  be  vacated  upon  a  motion  made  in  due  time.^  But 
the  only  question  strictly  within  the  scope  of  our  present 
inquiry  is  the  effect  of  such  a  sale  when  no  action  is  taken 
for  the  purpose  of  setting  it  aside.  If  the  sale  and  con- 
veyance be  made  directly  to  the  administrator,  sheriff  or 
other  officer,  it  may  well  be  declared  a  nullity,  on  the  ground 
that  one  person  cannot  unite  in  himself  the  capacity  of 
vendor  and  vendee — cannot,  by  the  same  act,  transmit  and 
receive.^  Two  or  more  administrators  or  executors  of  the 
same  decedent  are,  in  law,  treated  as  one  person.  Hence, 
even  where  the  statute  permits  such  an  officer  to  purchase 
the  property  of  the  estate  which  he  represents,  one  of  them 
cannot  convey  to  the  other.*  But  usually  laws  are  sought 
to  be  evaded  rather  than  openly  violated.  Hence,  an  ad- 
ministrator or  sheriff,  desirous  of  becoming  the  owner  of 
property  about  to  be  sold  by  himself,  will  seek  the  aid  of  a 

1  Sparling  v.  Todd,  27  Ohio  St.  521. 

2 Freeman  on  Executions,  sec.  292. 

3  Hamblin  v.  Warnecke,  31  Tex.  91;  Boyd  v.  Blankman,  29  Cal.  34; 
Stapp  V.  Toler,  3  Bibb,  150;  Dwight  v.  Blackmar,  2  Mich.  330;  s.  C,  57 
Am.  Dec.  130. 

"  Green  v.  Holt,  76  Mo.  677. 

60 


VOID    JUDICIAL    SALES.  §   33 

friend,  iu  whose  name  the  purchase  can  be  made  and  the 
title  held,  for  such  time  as  will  conceal  the  true  nature  of 
the  transaction.  In  a  case  of  this  kind,  the  officer  cannot 
be  permitted  to  protit  by  the  transaction  at  the  expense  and 
against  the  will  of  the  parties  interested.  On  learning  the 
true  state  of  the  facts  they  may  have  the  sale  annulled,  or 
they  may  affirm  it  and  permit  it  to  stand.  If  they  seek  to 
annul  it,  they  are  entitled  to  succeed,  irrespective  of  the 
fairness  or  unfairness  of  the  sale,  or  the  motives  which 
prompted  the  administrator  or  other  officer  or  trustee.^  But 
the  sale  is  not  void  in  the  extreme  sense.  It  cannot  be 
attacked  and  overthrown  by  third  persons.  Neither  can 
the  heirs  or  other  parties  in  interest  treat  it  as  unqualitiedly 
void.  They  may  confirm  it  either  directly,  or  by  their  non- 
action continued  for  a  long  period  of  time,  after  having 
notice  of  the  true  nature  of  the  transaction.  Such,  at 
least,  is  the  opinion  of  the  majority  of  the  authorities.-  In 
some  of  the  cases,  however,  such  a  sale  ap})ears  to  have 
been  held  void.^     In  New  York,  it  is  made  void  by  statute.* 

'  Kiddle  v.  KoU,  24  Ohio  St.  572;  Anderson  v.  Green,  46  Ga.361;  Pot- 
ter V.  Smith,  36  Ind.  231 ;  Smith  v.  Drake,  23  N.  J.  Eq.  392;  Fronberger 
V.  Lewis,  70  N.  C.  456;  Ryden  v.  .Jones,  1  Hawks,  497;  s.  c,  9  Am.  Dee. 
660;  Miles  v.  Wheeler,  43  111.  123;  Downing  v.  Lyford,  57  Vt.  507;  Ives 
V.  Ashley,  97  Mass.  198;  Bailey  v.  Robinson,  1  Gratt.  4;  s.  C,  42  Am. 
Dec.  540;  Edmunds  v.  Crenshaw,  1  McCord's  Ch.  252;  Glass  v.  Great- 
house,  20  Ohio,  503;  Guerrero  v.  Ballerino,  48  Cal.  118;  Scott  v.  Free- 
htnd,  7  S.  &  M.  409;  s.  C,  45  Am.  Dec.  310;  Green  v.  Sargeant,  23  Vt. 
466;  S.  C,  56  Am.  Dec.  88. 

2  Litchfield  V.  Cudworth,  15  Pick.  23;  Munn  v.  Burges,  70  111.  004; 
Boyd  V.  Blankman,  29  Cal.  19;  Hicks  v.  AVeems,  14  La.  An.  6">9;  Mus- 
selman  V.  Eshelman,  10  Pa.  St.  394; 'S.  c,  51  Am.  Dec. 493.  See  also  the 
authorities  in  the  preceding  citation,  and  AVhite  v.  Iselin,  26  Minn.  487; 
Fuller  V.  Little,  59  Ga.  338;  Mui-phy  v.  Teter,  56  Ind.  545;  Temples  v. 
Cain,  60  Miss.  478;  Davidson  v.  Davidson,  28  La.  An.  269;  Flanders  v. 
Flanders,  23  Ga.  249;  S.  C,  68  Am.  Dec.  523;  Remick  v.  Butterfield,  31 
N.  H.  70;  s.  c,  64  Am.  Dec.  316;  Bland  v.  Muncaster,  24  Miss.  62;  s.  c, 
57  Am.  Dep.  162;  Burch  v.  Lantz,  2  Rawle,  392;  s.  c,  21  Am.  Dec.  458. 

3  Hamblin  v.  Warnecke,  31  Tex.  94;  Morgan  v.  Wattles,  69  Ind.  260; 
Howell  v.  Tyler,  91  N.  C.  207;  Scott  v.  Gordon's  Ex.,  14  La.  115;  s.  c, 
33  Am.  Dec.  .578. 

<  Terwilliger  v.  Brown,  44  N.  Y.  237. 

(51 


§   34  VOID    JUDICIAL    SALES. 

Sales  made  by  sheriffs  and  constables,  in  which  they 
are  interested,  are,  under  the  statutes  in  force  in  many  of 
the  States,  held  void.^ 

A  sale  to  an  administrator  or  guardian,  where  he  is  not 
the  officer  conducting  the  sale,  as  where  it  is  made  under  an 
execution  against  his  ward  or  intestate,  while  perhaps  not  so 
objectionable  as  a  sale  made  in  his  official  capacity,  is,  never- 
theless, treated  with  no  greater  indulgence.  The  title 
acquired  thereat  would  doubtless  be  treated  as  held  in  trust 
for  the  benefit  of  the  ward  or  heirs,  and  they  could  compel 
a  conveyance  to  them  on  reimbursing  the  guardian  or  ad- 
ministrator for  the  money  necessarily  expended  in  the 
purchase. 

In  Arkansas,  the  attorney  who  prepares  the  petition  for 
and  obtains  an  order  of  sale,  and  the  judge  who  grants  such 
order,  are  incompetent  to  become  purchasers  at  the  sale.^ 
We  doubt  the  correctness  of  the  decisions,  holding  that  the 
attorney  of  a  guardian  or  administrator  is,  by  public  policy, 
forbidden  from  becoming  a  purchaser  at  a  sale  made  by 
such  o;uardian  or  administrator.^ 

§  34.  Sales  to  Raise  too  Great  a  Sum. — In  Kentucky, 
an  execution  or  chancery  sale  to  raise  a  sum  greater  than 
that  authorized  by  the  judgment  or  decree,  is  void.*  A 
like  rule  seems  to  apply  to  probate  sales  in  a  few  of  the 
States.^  How  this  rule  can  with  any  propriety  be  enforced 
against  probate  or  chancery  sales  we  are  unable  to  imagine 

1  Freeman  on  Executions,  sec.  292 ;  Woodbury  v.  Parker,  19  Vt.  353 ; 
s.  c,  47  Am.  Dec.  695;  Chandler  v.  Moulton,  33  Vt.  247;  Harrison  v. 
McHenry,  9  Ga.  164;  s.  c,  52  Am.  Dec.  435.  Perhaps,  by  the  concur- 
rence, both  of  plaintiff  and  defendant,  a  constable's  sale  to  himself  may 
be  ratified  and  become  valid.     Farnum  v.  Perry,  43  Vt.  473. 

2  West  V.  Waddell,  33  Ark.  575;  Livingston  v.  Cochran,  33   Ark.   294. 

3  Grayson  v.  Weddle,  63  Mo.  523. 

4  Patterson  v.  Carneal,  3  A.  K.  Marsh.  618;  s.  c,  13  Am.  Dec.  208; 
Blakely  v.  Abert,  1  Dana,  185;  Hastings  v.  Johnsou,  1  Nev.  613. 

5  Litchfield  v.  Cudworth,  15  Pick.  23;  Lockwood  v.  Sturtevant,  6  Conn. 
373;  Adams  V.  Morrison,  4  N.  H.  166;  s.  c,  17  Am.  Dec.  406;  Wakefield 
V.  Campbell,  20  Me.  393;  s.  c,  37  Am.  Dec.  60. 

62 


VOID    JUDICIAL    SALES.  §   35 

or  understand.  These  sales  take  place  under  the  authority 
of  courts  exercising  jurisdiction  over  the  owners  of  the 
property  sold,  and  are  reported  to  and  confirmed  by  such 
courts,  and  when  so  confirmed  the  parties  in  interest  then 
properly  before  the  court  are  concluded  by  the  order  of 
confirmation.  This  is  conceded  in  Kentucky,  with  respect 
to  all  sales  reported  and  confirmed  by  the  court. ^  And 
we  think  that  even  in  the  case  of  execution  sales,  which  the 
court  is  not  required  to  confirm,  that  the  sale  of  more 
property  than  was  required  to  satisfy  the  judgment  is  a 
mere  irregularity,  for  which  the  sale  may  be  vacated;  but 
that  until  vacated  by  some  appropriate  proceeding  it  is 
valid. 2 

§  35.  Sales  of  Property  Jfot  Subject  to  Sale.^ — It  is 
alwa3^s  indispensable  that  the  property  sold  should  be  sub- 
ject to  the  license,  decree  or  writ  under  which  the  sale  is 
made.  If  an  execution  issues,  it  can  reach  the  property  of 
the  defendant  only.  If  the  property  of  a  stranger  is  seized 
and  sold,  his  title  is  not  divested  thereby.^  If  property  of 
the  defendant  is  sold,  it  must  be  subject  to  the  execution 
levied  upon  it,  or  the  proceeding  will  be  entirely  inopera- 
tive upon  his  title.*  Hence,  an  execution  sale  of  a  home- 
stead is  usually  void;^  and  the  same  rule   is  often  applied 


'  Dawson  v.  Litsey,  10  Bush,  408. 

2  Groff  V.  Jones,  6  Wend.  522;  s.  C,  22  Am.  Dec.  545;  Tiernan  v. 
Wilson,  6  Johns.  Ch.  411;  Aldrich  v.  Wilcox,  10  R.  I.  405;  Osgood  v. 
Black-more,  59  111.  261:  Weaver  v.  Guyer,  .')0  Ind.  195;  Gibson  v.  Lyon, 
115  U.  S.  439. 

3  Freeman  on  Executions,  sec.  335. 

*  lb.,  sec,  109;  Harris  v.  Murray,  28  N.  Y.  574;  s.  c,  86  Am.  Dec.  268. 
The  defendant  may  hold  the  legal  title  in  trust  for  another  and  have  no 
beneficial  interest  in  it  whatsoever.  If  so,  his  interest  is  not  subject  to 
execution,  and  the  levy  of  a  writ  against  him  and  an  execution  sale 
pursuant  to  such  levy  are  entirely  inoperative.  Freeman  on  Executions, 
sec.  173;  Crenshaw  v.  Julian,  29  S.  C.  283;  s.  c,  4  Am.  St.  R.  719. 
Contra,  Smith  v.  Lookabill,  71  N.  C.  25;  Giles  v.  Palmer,  4  Jones,  386; 
S.  C,  69  Am.  Dec.  7.56, 

''Freeman  on  Executions,  sec.  239;  Vick  v.  Doolittle.  60  111.602; 
McCracken  v.  Adler,  98  X.  C.  400;  s.  c,  2  Am.  St.  R.  340. 

63 


§   36  VOID    JUDICIAL    SALES. 

to  other  exempt  property. ^  The  property  claimed  as  a 
homestead  may  be  in  excess  of  the  quantity  which  the 
claimant  is  entitled  to  hold.  In  such  cases,  the  statute  gen- 
erally provides  some  mode  by  which  the  non-exempt  part 
may  be  severed  from  the  exempt  part  and  subjected  to  the 
satisfaction  of  the  writ.  A  sale  in  the  absence  of  such 
severance  is  void  in  toto.-  If,  under  the  statute  of  a  State, 
the  homestead  of  a  decedent  does  not  come  within  the  con- 
trol of  its  probate  courts,  an  administrator's  sale  thereof, 
though  ordered  and  confirmed  by  the  court,  is  an  idle 
proceeding.^  If,  while  acting  under  a  valid  decree  or 
license,  an  administrator  sells  lands  not  embraced  therein, 
his  act  is,  as  to  such  lands,  obviously  without  any  legal 
support.* 

§  36.  Sales  of  a  Different  or  Less  Interest  than  that  of 
which  the  judgment  debtor,  or  the  estate  of  the  decedent 
was  seized,  have,  in  several  instances,  been  adjudged  to  be 
void.  Thus,  a  sale  which  purported  to  be  Subject  to  a 
mortgage,  when  the  mortgage  had  previously  been  fully 
satisfied,  was  adjudged  to  be  wholly  inoperative.  "As  to 
the  tract  which  was  levied  on  and  sold,  subject  to  the 
mortgage,  wo  are  of  the  opinion  that  nothing  but  the  equity 
of  redemption  can  be  considered  as  having  been  sold ;  and 
that  if  the  mortgage  had  previously  been  paid  off,  so  that 
there  was  no  subsisting  mortgage  and  no  equity  of  redemp- 
tion, nothing  passed  by  the  sale  and  sheriff's  deed."^  So, 
an  administrator's  sale,  under  an  order  "to  sell  the  equitable 

^  lb.,  sec.  215. 

2  Owens  V.  Hart,  52  Iowa,  620;  s.  c,  17  N.  W.  Rep.  898;  Mebane  v. 
Layton,  89  N.  C.  396;  Kipp  v.  Bullard,  30  Minn.  84;  Mohan  v.  Smith, 
30  Minn.  259. 

3  Yarboro  v.  Brewster,  38  Tex.  397;  Hamblin  v.  Warnecke,  31  Tex.  93; 
Howe  V.  McGivern,  25  Wis.  525.  This  is  true,  though  the  sale  is  author- 
ized to  be  made,  and  purports  to  be  made  subject  to  the  homestead 
right.     Wehrle  v.  Wehrle,  39  Ohio  St.  365. 

4  Ludlow  V.  Park,  4  Ohio,  5;  Green  v.  Holt,  76  Mo.  677. 

5  Dougherty  v.  Linthicum,  8  Dana,  198;  Bullard  v.  Hinkley,  6  Greenl. 
289;  s.  c,  20  Am.  Dec.  304. 

64 


VOID    JUDICIAL    SALES.  §   38 

interest  of  the  estate,  when  the  decedent  held  a  complete 
title,  legal  as  well  as  equitable,  was  held  to  pass  nothing  to 
the  purchaser;^  and  a  like  conclusion  was  reached  when  an 
undivided  interest  wa«  ordered  to  be  sold,  when  the  dece- 
dent was  seized  of  an  estate  in  severalty.^  Most  of  the 
decisions  on  this  subject  are  not  very  clear  in  their  state- 
ments of  the  reasons  which  were  thoupjht  sufficient  to  justify 
their  existence.  The  only  substantial  ground  for  their 
justification  is  that  neither  the  officers  charged  with  the 
seizure  and  sale  of  property,  nor  the  courts  invested  with 
jurisdiction  over  the  estates  of  minors  or  decedents,  were 
intended  to  be  given  power  to  carve  a  complete  and  perfect 
title  into  distinct  estates  or  interests,  thereby  making  the 
subject-matter  of  the  sale  less  inviting  to  purchasers,  and, 
probably,  leading  to  a  needless  sacrifice. 

§  37.  A  Sale  of  an  Undesignated  or  unlocated  part,  as 
of  a  certain  number  of  acres  out  of  a  larger  parcel,  when 
voluntarily  made,  is  sustained,  and  the  grantee  is  allowed 
to  locate  his  purchase  and,  until  such  location,  is  treated  as 
a  tenant  in  common  with  his  grantor  ;  but  like  indulgence 
is  not  conceded  to  the  purchaser  at  an  execution  sale  under 
like  circumstances.  On  the  contrary,  his  purchase  is  ad- 
iudo-ed  to  be  void  for  uncertainty,^ 

§  38.  Sales  of  Property  in  Adverse  Possession. — Ihe 
policy  of  the  common  law  prohibited  the  transfer  of  causes 
of  action.-  Lands  of  which  the  owner  was  disseized  could 
not  be  conveyed  during  such  disseizin.  The  conveyance  of 
such  lands  was,  by  statute  (32  Henry  8,  c.  9),  a  crime  for 
which,  on  conviction,  both  vendor  and  vendee  were  subject 
to  the  forfeiture  of  the  value  of  the  lands  sought  to  be  con- 
veyed. Execution  and  judicial  sales  have  never  been  within 
this  inhibition  against  voluntary  transfers.  On  the  contrary, 


'  Crane  V.  Guthrie,  48  Iowa,  542 ;  Braley  v.  Simouds,  61  N.  H.  36!). 

2  Eberstein  v.  Oswalt,  47  Mich.  2.54. 

3  Pemberton  v.  McRae,  75  N.  C.  497;  Wooters  v.  Arlcdge,  .51  'IVx.  3%; 
Freeman  on  Executions,  sec.  281. 

65 


§   40  VOID    JUDICIAL    SALES. 

they  are  supported,  whether  he  whose  title  is  involuntarily 
transferred  be  seized  or  disseized.^ 

§  39.  Sales  en  Masse. — The  duty  ot  an  officer  in  making 
a  sale  is  to  offer  the  property  in  such  parcels  as  will  prove 
most  inviting  to  the  bidders,  and  realize  the  greatest  sums 
for  the  heirs  and  other  interested  persons.  Hence,  if  sev- 
eral parcels  of  real  estate  are  embraced  in  one  license,  the 
administrator  is  to  offer  them  for  sale,  not  in  one  lump,  but 
"in  such  parcels  as  shall  be  best  calculated  to  secure  the 
greatest  aggregate  amount. "^  Where  several  distinct  par- 
cels of  land  are  to  be  sold,  each  ought  to  be  offered  and 
sold  separately,  unless  it  is  clear  that  the  union  of  two  or 
more  will  augment  rather  than  decrease  the  aggregate  pro- 
ceeds of  the  sale.  In  Tennessee  and  Michigan,  a  lumping 
execution  sale  of  two  or  more  separate  parcels  of  land  is 
void  ;^  but  in  nearly,  if  not  quite  all,  the  other  States,  such 
a  sale,  though  voidable,  is  not  a  nullity.*  In  Michigan,  a 
probate  sale  is  not  void,  because  two  or  more  parcels  are 
sold  together.^ 

§  40.  Sales  Infected  by  Fraudulent  Combinations  and 
Devices. — Judicial  and  execution  sales  are  usually  impera- 
tive. Those  who  own  property  are  compelled  to  sell  for 
whatever  is  offered.     To  avoid  the  sacrifice  likely  to  ensue, 

1  Drinkwatei*  v.  Drinkwater,  4  Mass.  354;  Willard  v.  Nason,  .5  Mass. 
241;  High  v.  Nelms,  14  Ala.  350;  s.  c,  48  Am.  Dec.  103;  Cook  v.  Travis, 
20  N.  Y.  400;  McGill  v.  Doe,  9  Ind.  306;  Stevens  v.  Hauser,  39  N.  Y. 
302.     Contra,  Campbell  v.  P.  S.  1.  Works,  12  R.  I.  452. 

2  Delaplaiue  v.  Lawrence,  3  N.  Y.  304. 

3  Fi'eeman  on  Executions,  sec.  296;  Mays  v.  Wherry,  58  Tenn.  133. 

4  Freeman  on  Executions,  sec.  296;  Bouldin  v.  Ewart,  63  Mo.  330; 
Foley  V.  Kane,  53  Iowa,  64;  Smith  v.  Schultz,  68  N.  Y.  41 ;  Lambertou  v. 
Merchants'  Banks,  24  Minn.  281;  Rector  v.  Hartt,  8  Mo.  448;  s.  C,  41 
Am.  Dec.  650;  Wilson  v.  Twitty,  14  Am.  Dec.  .569;  s.  C,  3  Hawks.  44. 
Indiana  and  Pennsylvania,  though  inclined  to  proceed  with  caution, 
will,  doubtless,  when  necessity  for  further  action  arises,  "fall  into  line" 
with  the  majority  of  their  sister  States.  Jones  v.  Kohomo  R.  Associa- 
tion, 77  Ind.  340;  Smith  v.  Meldren,  107  Pa.  348;  Nelson  v.  Bronneu- 
berg,  81  Ind.  102;  Furbish  v.  Greene,  108  Pa.  St.  503. 

5  Osman  v.  Traphagen,  23  Mich.  80. 

(>6 


VOID    JUDICIAL    SALES.  §   41 

notices  of  sale  are  required  to  be  given,  tlie  property  is 
struck  off  to  the  highest  bidder,  and  competition  among  the 
persons  intending  to  bid  is  sought  to  be  produced.  But  the 
bidders,  on  their  part,  may  enter  into  combinations  and  de- 
vices, either  with  one  another  or  the  officer  conducting  the 
sale,  by  means  of  which  competition  is  lessened  or  alto- 
gether avoided.  Every  scheme  looking  to  this  result  is 
highly  immoral,  and  will,  if  possible,  be  thwarted  by  the 
courts.  The  sale  may  be  vacated,  either  by  motion  or  by  a 
bill  in  equity.  "Whether  a  purchase,  obtained  by  the  ))re- 
vention  of  competition,  can,  by  the  guilty  party,  be  asserted 
at  law,  is  a  question  upon  which  the  courts  are  by  no  means 
agreed.  In  several  of  the  States  such  a  purchase,  and  the 
deed  made  in  pursuance  thereof,  are  regarded  as  a  valid 
transfer  of  the  lefjal  title.  The  defendant  in  execution, 
wishing  to  prevent  the  assertion  of  this  title,  must  claim 
the  assistance  of  a  court  of  equity.  But  the  majority  of 
the  decisions  sustain  an  adverse  theory — one  under  which 
the  title  of  the  fraudulent  purchaser  is,  while  in  his  hands, 
regarded  as  void,  and,  therefore,  as  capable  of  being  resisted 
not  less  successfully  at  than  in  equity."^ 

§  41 .  Purchaser's  Title  Not  Affected  by  Secret  Frauds. 
— It  is  a  general  rule  that  one  wtio  purchases  at  a  judicial, 
probate  or  execution  sale  cannot  be  deprived  of  his  title 
by  secret  frauds  or  irregularities,  in  which  he  did  not  par- 
ticipate and  of  which  he  had  no  notice. ^  Hence,  an  admin- 
istrator's sale  cannot  be  avoided  by  showing  that  he  pro- 
cured his  license  to  sell  by  fraud  and  misrepresentation  in 
the  absence  of  any  necessity,  and  with  the  design  of  sacri- 
ficins:  the  interests  intrusted  to  his  care.^     Nor  can  an  inno- 

1  Freeman  on  Executions,  sec.  279;  Underwood  v.  McVeigb,  23  Gratt. 
409;  Burton  v.  Spiers,  92  jST.  C.  503;  Cram  v.  Rotheriuel,  98  Pa.  St.  300; 
Barton  v.  Hunter,  101  Pa.  St.  406. 

2  Freeman  on  Executions,  sees.  342,  353;  Wisdom  v.  Parker,  31  La. 
An.  52;  llerriman\s  Heirs  v.  Janney,  31  La.  An.  276;  Duckworth  v. 
Vaughan,  27  La.  An.  599;  Zeigler  v.  Shomo,  78  Pa.  St.  357;  Maina  v. 
Elliott,  51  Cal.  8;  Wallace  v.  Loomis,  07  U.  S.  146. 

•' Lamothe  v.  Lippott,  40  Mo.  142;  Myer  v.  McDougal,  17  111.278; 
Moore  v.  Neil,  39  111.  250;  McCown  v.  Foster,  33  Tex.  241. 

67 


§    41  VOID    JUDICIAL    SALES. 

cent  purchaser  be  injuriously  affected  by  proof  of  any 
mistake,  error  or  fraud  of  an  administrator  or  guardian  in 
conducting  a  sale.^  Although  the  original  purchaser  has 
himself  been  guilty  of  fraudulent  devices,  or  has  had  notice 
of  such  devices  practiced  by  others,  he  can  transmit  a  valid, 
unimpeachable  title  to  a  vendee  for  value,  in  good  faith, 
and  without  notice.  Therefore,  if  a  sale  be  nominally 
made  to  a  stranger,  but  really  for  the  benefit  of  the  admin- 
istrator, and  this  stranger  convey  to  another,  for  value,  who 
has  no  notice  that  the  apparent  are  not  the  true  facts,  the 
title  cannot,  in  the  hands  of  the  latter  or  his  vendees,  be 
rendered  void  or  voidable  by  proof  of  the  real  facts.^  The 
fact  that  the  purchaser  did  not  pay  the  amount  of  his  bid 
until  several  months  after  the  sale,  while  it  may,  as  between 
the  purchaser  and  the  defendant,  entitle  the  latter  to  have 
the  period  allowed  for  redemption  computed  from  the  day 
of  such  payment  rather  than  from  the  day  of  sale,  cannot 
prejudice  the  title  of  an  innocent  purchaser  who  bought  in 
good  faith,  relying  upon  the  sheriff's  deed.^  A  purchaser 
at  a  guardian's  or  administrator's  sale  is  not  charged  with 
the  duty  of  seeing  to  the  proper  application  of  the  pro- 
ceeds of  the  sale.*  The  validity  of  his  title  is  not  de- 
stroyed by  the  embezzlement  of  the  money  which  he  has 
paid  to  the  person  authorized  by  law  to  receive  it.^  The 
title  of  the  purchaser  at  an  execution  sale  is  generally  not 
dependent   on  the  officer's   return,  and  a  failure  to  make 

1  Gwinn  v.  Williams,  30  Ind.  374;  Staples  v.  Staples,  24  Gratt.  225; 
Jones  V.  Clark,  25  Gratt.  632;  Patterson  v.  Lemon,  50  Ga.  231. 

2  Blood  V.  Hayman,  13  Met.  231 ;  Staples  v.  Staples,  23  Gratt.  225 ; 
Bobbins  v.  Bates,  4  Cush.  104;  Gwinn  v.  Williams,  30  Ind.  374. 

3  Maina  v.  Elliott,  .51  Cal.  8;  but  there  are  cases  holding  that  the  fact 
of  non-payment  of  the  purchase  money  makes  void  a  probate  sale.  Cor- 
bitt  V.  Clenny,  52  Ala.  480;  Wallace  v.  Nichols,  56  Ala.  321. 

4  Cooper  V.  Horner,  62  Tex.  356;  Knotts  v.  Stears,91  U.  S.  638;  Barnes 
V.  Trenton  Gas  L.  Co..  27  N.  J.  Eq.  33;  Whitman  v.  Fisher,  74  111.  147. 

5  Giles  V.  Pratt,  1  Hill  (S.  C),  239;  s.  C.,26  Am.  Dec.  170;  Mulford  v.. 
Stalzenback,  46  111.  303;  Muskingum  Bank  v.  Carpenter,  7  Ohio,  part  1, 
p.  21 ;  s.  c,  28  Am.  Dec.  616. 

68 


VOID    JUDICIAL    SALES.  §   41 

such   return   does    not   avoid  it,^  neither  is  it  imperiled  by 
defects  and  variances  in  such  return  when  made.- 

1  Bray  v.  Marshall,  75  Mo.  327;  Holraan  v.  Gill,  107  111.  467;  Caldwell 
V.  Blake,  69  Me.  458;  Freeman  on  Executions,  sec.  341.  Contra,  Walih 
V.  Anderson,  135  Mass.  65. 

2  Freeman  on  Executions,  sec.  341;  Hebbert  v.  Smith,  3  W.  C.  Rep. 
446;  Millis  v.  Lombard,  32  Minn.  544;  Ritter  v.  Scammell,  11  Cal.  238; 
s.  c,  70  Am.  Dec.  775;  Hunt  v.  Loucks,  38  Cal.  372;  S.  C.  99  Am.  Dec. 
404. 

69 


§  42  VOID   JUDICIAL    SALES. 


CHAPTER  IV. 


THE  CONFIRMATION  AND  DEED. 
SECTION. 

42.  Notice  must  be  Given  before  Confirming  Sales. 

43.  Confirmation  is  Essential  to  Title. 

44.  What  Irregularities  are  Cured  by  Confirmation. 

45.  Deed  is  Essential  to  Transfer  of  Legal  Title. 

46.  Deed,  When  and  by  Whom,  may  be  Made. 

47.  Deed  when  Void,  because  not  in  Proper  Form. 

§  42.  Notice  Before  Conflrmation. — Under  the  statutes 
in  force  in  most  of  the  States,  execution  sales  are  not  re- 
quired to  be  approved  by  the  court  out  of  which  the  writ 
issued.  Chancery  and  probate  sales,  on  the  other  hand,  are 
usually  made  subject  to  the  approval  of  the  court.  In 
order  to  obtain  this  approval  some  of  the  statutes  require  a 
verified  return  of  sales  to  be  filed,  and  that  this  return  shall 
be  brought  on  for  hearing  only  after  notice  has  been  given 
in  a  mode  prescribed  by  statute.  AVhere  this  is  the  case, 
the  question  arises  whether  a  confirmation  entered  without 
giving  any  such  notice  is  valid.  The  authorities  on  the  sub- 
ject are  too  meagre  to  justify  any  positive  answer,  but  their 
tendency  is  toward  the  conclusion  that  the  confirmation  is  a 
nullity,  or,  at  least,  that  the  confirmation  does  not  preclude 
the  parties  from  urging,  in  a  collateral  attack,  any  objec- 
tions existing  against  the  sale.^ 

1  Speck  V.  Wohlien,  22  Mo.  310;  Perkins  v.  Gridley,50  Cal.  97;  Dugger 
V.  Tayloe,  60  Ala.  504;  but  in  this  State  it  is  the  administrator,  an  1  not 
the  heirs,  who  must  l)e  notified. 

70 


VOID    JUDICIAL    SALES..  §   44 

§  43.  Coutirniation  is  Essential  to  Title. — When  the 
law  under  which  a  sale  is  made  requires  it  to  be  reported 
to  court  for  approval  or  disapproval,  such  ap))roval  is 
essential  to  the  consummation  of  jtlie  sale.  Without  it 
there  is  uo  authority  for  makinff  any  conveyance  to  the 
purchaser/  and  a  conveyance  without  authority  is  obviously 
void.-  This  rule  is  equally  applicsible  to  execution,  chan- 
cery and  probate  sales.-'  But  instances  may  occur  in  which 
the  ratification  or  acquiescence  of  the  parties  may  either 
estop  them  from  invoking  this  rule  or  give  rise  to  the  pre- 
sumption that  an  order  of  confimation  was  made,  of  which 
the  evidence  has  been  lost.*  So,  the  approval  of  the  court 
has  sometimes  been  inferred  from  its  subsequent  acts  and 
proceedings,  though  no  order  of  confirmation  could  be  found 
in  its  record.''  The  failure  of  the  clerk  of  the  court  to 
enter  the  decree  of  confirmation  on  the  minutes  of  the 
court  is  not  fatal  to  the  purchaser's  title,  where  it  sufficiently 
appears  that  such  decree  was  in  fact  ordered  by  the  court." 

§   44.      What    Irregularities    are    Cured   by    Contirraa- 
tion In  Kansas,  the  confirmation  by  the  court  of  an  oxe- 

1  Freeman  on  Execution,  Sec.  304a;  Reed  v.  Ratligiui,42  Ohio  fcjt.  292; 
M:cBain  v.  McBain,  15  Ohio  St.  337;  Curtis  v.  Norton,  1  Ohio,  IS?.! 

2  Williamson  v.  Berry,  8  How.  (U.  S.)  4!I6;  Gowan  v.  Jones,  10  S.  &  jM  • 
164;  Dickerson  v.  Talbot,  14  B.  Mon.  00;  Kablc  v.  .Mitchell,  9  W.  Va. 
492;  Jones  v.  Hollingsworth,  10  Heisk.  6.")2:  Baltell  v.  'I'oney,  65  N.  Y. 

299. 

3  Mason  v.  Osgood.  04  X.  C.  467;  Rawlins  v.  Bail(\v,  15  HI.  178;  Valle 
V.  Fleming,  1!)  Mo.  454;  Wallace  v.  Hall,  1!)  Ala.  307:  Rea  v.  McEach- 
ron  13  Wend.  465;  S.  C,  28  Am.  Dec.  476;  Bonner  v.  Greenlee,  6  Ahi. 
411;  Wade  v.  Carpenter,  4  Iowa,  361 :  State  v.  Towl,  48  Mo.  148. 

*  Henderson  v.  Herrod,  23  Miss.  434;  Tipton  v.  Powel,  2  Coldw.  1!»; 
Smith  V.  West,  64  Ala.  34;  Watts  v.  Scott,  3  Watts,  79;  Gowan  v.  Jones, 
10  S.  &  M- 164;  Moore  v.  Greene,  19  How.  (U.  S.)  69.  In  some  cases  the 
confirmation  of  probate  sales  is  not  required  by  statute.  Hobson  v. 
Ewan,  62  111.  146:  Robert  v.  Casey,  25  Mo.  584.  In  Missouri,  the  sale  of 
lands  under  an  order  of  the  probate  court  must  be  coulirmed ;  but  con- 
firmation is  not  indispensable  to  sales  in  proceedings  before  the  circuit 
court.     State  v.  Towl,  48  Mo.  148;  Castleman  v.  Relfe,  50  Mo.  583. 

5  Grayson  v.  Weddle,  03  Mo.  523;  Robertson  v.  .lohiisoii.  57  T«-x.OJ. 

«  Moody  V.  Butler,  03  Tex.  210. 

71  (•>) 


§   44  VOID    JUDICIAL    SALES. 

cution  sale  "  is  an  adjudication  merely  that  the  proceedings 
of  the  officer,  as  they  appear  of  record,  are  retrular,  and  a 
direction  to  the  sheriff  to  complete  the  sale."^  With  re- 
spect to  chancery  and  probate  sales,  we  apprehend  that  their 
confirmation  has  an  effect  beyond  that  conceded  in  Kansas 
to  the  confirmation  of  execution  sales.  The  object  of  the 
proceeding  for  confirmation  is  to  furnish  an  oi)portunity  for 
inquiry  respecting  the  acts  which  have  been  done  under  the 
license  to  sell.  The  court  may,  if  it  deems  best,  ratify 
various  irregularities  in  the  proceedings.  If  the  officer 
changed  the  terms  of  the  sale,  the  court  may  ratify  his 
action,  provided  the  terms,  as  changed,  are  such  as  the 
court  had  power  to  impose  in  the  first  instance.-  As  to  the 
matters  upon  which  a  court  is  required  to  adjudicate  in  its 
order  of  confirmation,  we  see  no  reason  why  its  decision 
should  not  be  binding,  and  should  not  preclude  the  re-asser- 
tion of  any  matter  which  was  either  passed  upon  by  the 
court,  or  which  the  parties  might  have  had  passed  upon  if 
they  had  chosen  to  bring  it  to  the  attention  of  the  court.-* 
After  a  sale  has  been  confirmed,  it  cannot  be  defeated  by 
showing  collaterally  that  there  was  a  failure  to  appraise  the 
property,*  or  a  defect  in  the  notices  of  sale,^  or  that  the 
administrator  did  not  exact  security  for  the  payment  of  the 
purchase  money ,*^  or  that  the  commissioner  who  made  the 
sale,  was  not  authorized  to  make  it,'  or  that  the  officer  de- 
parted from  the  order  of  sale  prescribed    by    the  decree.^ 

1  Koehler  v.  Ball,  2  Kans.  172;  s.  C,  83  Am.  Dec.  451 ;  Briggs  v.  Tye, 
16Kans.  291. 

2  Jacob's  Appeal,  23  Pa.  St.  477;  Emery  v.  Vroman,lU  Wis  689;  S.c, 
88  Am.  Dec.  726;  Thoru  v.  Ingram,  25  Ark.  58. 

3  Willis  V.  Nicholson,  24  La.  An.  545;  Cockey  v.  Cole,  28  Md.  276; 
S.C,  92  Am.jDec.  604  Hotchkiss  v.  Cutting,  14  Minn.  537;  Brown  v.  Gil- 
mor,  8  Md.  322;  Thorn  v.  Ingram,  25  Ark.  58;  Osman  v.  Traphagan,23 
Mich.  SO;  Conover  v.  Musgrove,  68  111.  58;  McRae  v.  Danuer,  8  Oreg. 
63;  Dawson  v.  Litsey,  10  Bush,  408;   AVilcox  v.  Raben,  24  Neb.  368. 

*  Neligb  V.  Keene,  16  Neb.  407;    s.  C,  20  N.  W.  Rep.  277. 
5  Wyant  v.  Tuthill,  17  Neb.  495;  s.  C,  23  N.  W.  Rep.  342. 
"  Wilkerson  v.  Allen,  67  Mo.  502. 
'  Core  V.  Strieker,  24  W.  Va.  689. 
*<  McGavock  v.  Bell.  3  Coldw.  512. 

72 


VOID    JUDICIAL    SALES.  §   44 

The  code  of  civil  procecUue  of  California,  doclares,  witli  re- 
spect to  probate  sales,  that  "all  sales  must  he  under  oath, 
reported  to  and  continued  by  the  court,  before  the  title  to 
the  propert}^  sold  passes."  In  an  action  of  ejectment,  it 
appeal  ed  that  defendant's  title  was  based  on  a  probate  sale  ; 
that  the  return  of  sales,  as  offered  and  received  in  evidence, 
was  not  verified,  but  that  the  order  of  confimation  contained 
a  recital,  "'that  the  return  of  sale  was  duly  verified  by  afli- 
davit."  The  court  said:  "  This  recital  is  conclusive  in  the 
present  case,  and  a  finding  of  fact  to  the  contrary'  does  not 
in  any  manner  affect  the  conclusiveness  of  the  recital  in  the 
decree.  The  fact  was  not  a  jurisdictional  one,  and  the  prin- 
ciple applicable  to  the  inconclusiveness  of  statements,  or 
recitals  in  judgments,  conferring  jurisdiction,  does  not 
apply. "^  But  the  curative  powers  of  orders  of  confirmation 
extend  to  voidable,  rather  than  to  void  sales.  If  a  sale  be 
void  because  the  court  did  not  have  jurisdiction  to  order  it, 
or  because  it  included  property  not  described  in  the  decree 
or  order  of  sale,  an  order  confirming  it  is  necessarily  inop- 
erative. "The  sale  being  void,  there  was  no  subject-mat- 
ter upon  which  the  order  of  confimation  could  act.  If  the 
court  had  no  jurisdiction  to  order  the  sale,  it  had  none  to 
confirm  it.  Where  there  is  no  power  to  render  a  judgment, 
or  to  make  an  order,  there  can  be  none  to  confirm  or  exe- 
cute it. "2  If,  after  property  is  sold  at  probate  sale  to  the 
highest  bidder,  he  fails  to  comply  with  his  bid,  and  another 
person  is  substituted  in  his  place,  and  is  reported  to  the 
court  as  the  purchaser,  and  the  sale  is  confirmed  to  the  lat- 
ter, he  cannot  avoid  the  sale  and  be  exonerated  from  pay- 
ing the  purchase  price.  "The  mere  substitution  of  one 
person   for  another  cannot  affect  the   validity   of  the  sale. 

J  Deunis  v.  Winter.  C:?  Cal.  IG. 

2  Minn.  Co.  v.  St.  Paul  Co.,  2  Wall.  (iO'.t:  I'ike  v.  Wassail,  !»4  U.  S.  74 ; 
Gaines  v.  New  Orleans,  6  Wall.  642;  3Iontgomery  v.  Samory.  !i!i  U.  S. 
482;  Townsend  v.  Tallant,  :«  Cal.  54;  s.  <;..91  Am.  Dec.  G17;  Sliriver  v. 
Lynn,  2  How.  (U.  S.)  .IT;  Hawkins  v.  Hawkins.  2^  Ind.  TO.  See  IJi-tlu-l 
V.  Bethel,  0  Bush.  0.'). 

7;-; 


§  4«i  VOID    JUDICIAL    SALES. 

The  order  directing  the  sale,  and    the  order  contirminnj   it, 
give  vitality  the  purchase."^ 

The  irregularities  which  are  cured  by  the  entry  of  a  de- 
cree or  order  of  confirmation  relate  chiefly,  if  not  exclu- 
sively, to  the  proceedings  of  the  court  and  its  officers  or  of 
the  person  conducting  the  sale.  The  sale  may  have  been 
attended  by  wrongful  acts  or  devices  of  the  purchaser,  or 
by  the  positive  fraud  either  of  himself  or  of  others,  of 
which  be  has  notice,  actual  or  presumed.  Questions  in- 
volving these  fiauds  are  not  ordinarily  presented  for  con- 
sideration at  the  time  the  sale  comes  on  for  approval  or 
disapproval.  Their  existence  is  generally  not  discovered 
until  a  later  date.  When  they  are  not  suggested  to  the 
court  by  the  return  of  sale,  or  by  some  other  means,  they 
remain  open,  notwithstanding  the  decree  of  confirmation.^ 

§  45.  Deed  Essential  to  the  Transfer  of  Legal  Title. 
— A  conveyance  is  necessary  to  invest  the  purchaser  at  an 
execution,  chancery  or  probate  sale  with  the  legal  title. ^ 
In  Maryland,  Texas  and  Louisiana,  this  rule  seems  not  to 
apply  to  execution  sales,*though  in  Texas,  a  conveyance  by 
an  administrator  is  conceded  to  be  essential  to  the  transfer 
of  the  legal  title  after  a  probate  sale.^ 

§  46.  Deed,  when  and  by  Whom  to  be  Made. — In  Mas- 
sachusetts and  Maine,  under  statutes  prescribing  that 
licenses  for  sales  should  continue  in  force  for  one  year  only 
after  they  were  given,  it  was  held  that  the  execution  of  a 
deed  was  a  part  of  the  sale,  and  that,  if  not  executed  within 


iHalleck  v.  Guj^  i)  Cal.  197;  s.  C,  70  Ain.  Dec.  643;  Ewing  v.  Higby, 
7  Ohio,  pt.  p.  198;  s.  C,  28  Am.  Dec.  633. 

2  Jackson  v.  Liideliug,  21  Wall.  633;  City  Bk.  v.  Walden,  1  La.  An.  46. 

3  Hayes  v.  N.  Y.  M.  Co.,  2  Colo.  273;  Goss  v.  Meadors,  78  Ind.  528; 
Freeman  on  Executions,  sec.  324;  Merrit  v.  Terry,  13  Johns.  471;  Doe 
V.  Hardy,  52  Ala.  291 ;  Hudgens  v.  Jackson,  51  Ala.  514;  Van  Alstyne  v. 
Wimple,  5  Cow.  162;  Farmers'  Bank  v.  Merchant,  13  How.  Pr.  10. 

*  Boring  v.  Lemmon,  5  H.  &  J.  223;  Leland  v.  Wilson,  34  Tex.  91; 
Fleming  v.  Powell,  2  Tex.  225;  Joiiet  v.  Mortimer,  29  La.  An.  206. 

*  Sypert  v.  McCoweu,  28  Tex.  638. 

74 


VOID    .JLDKIAL    SALES.  §   46 

one  year  after  the  granting  of  the  license,  it  was  void.'  We 
cannot  concur  in  this  opinion.  A  sale  is  certainly  complete 
when  it  has  been  regularly  confirmetl  by  the  court,  and  the 
purchase  price  has  been  paid  to  the  person  entitled  to  re- 
ceive it.  Even  if  this  be  not  true,  the  purchaser  has 
acquired  an  equitable  title — a  right  to  a  conveyance  in  pur- 
suance of  his  purchase  and  payment.  A  court  of  equity 
would  recognize  and  protect  this  right  by  decreeing  a  con- 
veyance.- If  a  conveyance  can  be  compelled,  certainly  it 
ought  not  to  be  void  merely  because  made  without  compul- 
sion.^^ No  conveyance  ought  to  be  made  before  the  pay- 
ment of  the  purchase  money .^  If  made  before  such  pay- 
ment, it  is  void  in  Indiana."*  But,  we  apprehend  that, 
as  a  general  rule,  such  a  conveyance  is  voidable  rather  than 
void.*'  If  the  statute,  under  which  a  sale  is  made,  does  not 
authorize  a  conveyance  until  after  the  expiration  of  the 
time  allowed  the  defendant  to  redeem  his  property,  a  deed 
made  in  advance  of  that  time  is  a  nullity.'  After  the  right 
to  a  deed  has  become  perfect,  we  believe  it'  may  be  made 
at  any  time.^  An  administrator's,  executor's  or  guardian's 
deed  must  be  made  in  person.  These  officers  exercise 
powers  in  the  nature  of  trusts,  wherein  special  confidence 
is  reposed.  Hence,  they  cannot  delegate  their  authority 
to  ao-ents.'-'     Sheriffs    and    constables,  on    the    other  hand, 

1  Macy  V.  Kaynioud, !)  Pick.  287:  Wollinan  v.  T.awrcnce.  !.">  Mai's.  :V2G; 
Mason  v.  Ham,  36  Me.  ."^73. 

2  Piatt's  lleiis  v.  McCullough's  Heirs,  1  McLean,  6'J. 

"  Howard  v.  Moore,  2  Mich.  226;  Osman  v.  Traphageu.  23  Mich.  SO, 

^  Barnes  v.  Morris.  4  Ir^d.  Kq.  22;  Johnson  v.  Hines,  61  Mc3.  122. 

■5  Ruckle  V.  Barbour,  48  hid.  274;  Chtipinan  v.  llarwood,  8  Blackf.  82. 
In  Alabama,  an  order  to  convey  before  all  the  pin-ehase  money  is  paid, 
is  a  nullity.     Corbitt  v.  Clenny,  52  Ala.  480. 

'•  Osirian  v.  Trapliagen,  23  Mich.  80. 

'  Freeman  on  Executions,  sees.  316,32.'>;  Perhaiii  v.  Kuper,  61  Cal.331. 

^  In  Illinois,  the  deed  must  be  made  within  eight  years  and  three 
months  after  the  sale,  unless  the  eourt,  on  motion,  authorizes  it  to  be 
made  at  a  later  dat<'.  ilueker  v.  Dooley,  ID  111.  377:  'X>  Am.  Dee.  614; 
Cottingham  v.  Springer,  88  111.  00. 

"  Gridley  v.  I'hillips.  .")  Kan.  34!). 

7") 


§   46  VOID    JUDICIAL    SALES. 

may  have  deputies,  and  such  deputies  are  competent  to 
execute  conveyances  in  the  names  of  their  principals. ^  The 
power  of  such  officers  does  not  terminate  with  their  terms 
of  office.  Their  successors,  unless  authorized  by  statute, 
have  no  authority  to  convey  property.  The  conveyance 
must  be  executed  by  him  who  made  the  sale,  though  he  no 
longer  continues  to  be  an  officer,"  or  by  his  deputy,  for  the 
deputy,  notwithstanding  the  expiration  of  the  principal's 
official  term,  retains,  unless  his  authority  has  been  revoked, 
power  to  execute  conveyances  in  the  name  of  the  principal.^ 
If  there  is  no  officer  or  person  in  existence  competent  to 
execute  the  deed,  the  court  will  upon  motion  appoint  some 
person  and  thereby  invest  him  with  power  to  make  the 
appropriate  conveyance.*  In  Mississippi,  an  administrator 
de  bonis  non  cannot  execute  a  conveyance  where  the  sale 
was  made  by  his  predecessor  in  office.^  But  we  judge  the 
better  rule  to  be,  that  such  an  administrator  may  complete 
whatever  the  first  administrator  ought  to  have  done.*^ 

A  conveyance  made  to  a  person  not  entitled  to  receive 
it,  as  where  a  deed  is  given  to  one  as  assignee,  when  no 
assignment  has  been  made,  is  void."  "The  deed  can  only 
be  made  to  the  original  purchaser  at  the  sale,  or  to  his 
successor  in  interest.  The  interest  of  the  purchaser  may 
be  assigned;  or  it  may,  at  his  death,  become  vested  in  his 
heirs  or  devisees,  or  his  executors  or  administrators,  in 
trust  for  such  heirs  or  devisees.  Though  the  statute  makes 
no  direct  provision  for  the  issuing  of  a  deed  to  any  one  but 
the  purchaser,  his  power   to  assign  the  certificate  of  pur- 

1  Freeman  on  Executions,  sec.  327. 

2  People  V.  Bowrinoj,  8  Cal.  406;  68   Am.   Dec.   331 ;  Lemon   v.  Crad- 
dock,  L^tt.  Sel.  Cas.  261 ;  12  Am.  Dec.  301 ;  Porter  v.  Mariner,  50  Mo.  364. 

3  Tuttle  V.  Jackson,  6  Wend.  213;  Mills  v.  Tiikey,  22  Cal.  373;  83  Am. 
Dec.  74;  Eobinson  v.  Hall,  33  Kan.  139. 

^  People  V.  Bowring,  S  Cal.  406;  68  Am.  Dec.  331;  Sickles  v.  Hoge- 
boom,  10  Wend.  .■>62. 

5  Davis  V.  Brandon,  1  How.  (Miss.)  l.')-l. 

6  Gridley  v.  Phillips,  5  Kan.  354. 

7  Carpenter  v.  Sherfy,  71  111.  427. 

7(5 


VOID    JUDICIAL    SALES.  §   47 

chase,  and  the  consequent  right  of  his  assignee  to  a  con- 
veyance seem  to  be  conceded.  The  fact  of  the  assignment 
should  be  recited  in  the  sheriff's  deed;  and,  when  so  re- 
cited, the  deed  is  at  least  prima  facie  evidence  that  the 
assignment  was  made  as  therein  stated."  ^ 

§  47.  Deed,  when  Void  because  not  in  Proper  Form. — 
The  instances  in  which  a  deed,  issued  in  pursuance  of  an 
execution  or  chancery  sale,  is  void  for  errors,  defects  or 
mistakes  in  form,  are  very  rare.  In  fact,  any  instrument 
executed  by  an  officer  tiuthorized  to  make  it,  purporting  to 
convey  the  property,  is  probably  sufficient,  if  the  acts  neces- 
sary to  authorize  him  to  make  a  convej^ance  can  be  shown. - 
Of  course,  the  deed  must  be  executed  with  the  formalities 
essential  to  other  deeds,  and  must  show  that  the  person 
who  signs  it,  is  acting  in  an  official  capacity,  and  not 
merely  conveying  his  own  title  to  the  property.  In  some 
States  a  form  for  sheriff's  deeds  is  prescribed  by  statute. 
These  statutes  are  generally,  but  not  universally,  declared 
to  be  directory  merely.-''  Deeds  executed  by  executors, 
administrators  or  guardians,  are,  in  many  States,  treated 
with  less  indulgence  than  those  made  by  sheriffs.  This  is 
particularh^  the  case  where  a  statute  has  directed  that  some 
statement  or  recital  shall  be  set  forth  in  a  deed.  Such  stat- 
utes, with  reference  to  administrator's  and  guardian's  deeds, 
have  been  held  imperative,  and  not  directory  merely. 
Thus,  where  a  statute  required  an  order  to  be  set  forth  at 
large,  a  deed  merely  referring  to  such  order,  and  stating  its 
substance,  was  adjudged  void.^  The  correctness  of  this 
decision  mav  })e  doubted.     Perhaps  an  omission  to  refer  to 


'  Freeman  on  Executions,  sec.  328;  Messerschinidt  v.  Bakor.  JJ  .Minn. 
81. 

-  Freeman  ou  Kxecutions,  .sec.  329. 

■  Freeman  ou  Executions,  sec.  32i»;  Armstrong  v.  McCoy,  s  Ohio.  128; 
S.  C,  31  Am.  Dec.  435;  Bettison  v.  Budd,  17  Arli.  TjSS;  .s.  <•.,  Cm  Am.  I)«m>. 
442;  Ogden  v.  \\'alt(M-s.  12  F\ans.  2!)0;  Perkins' Lessee  v.  Diltltlc.  10  Ohio. 
433;  s.  c.  :',<;  .Vm.  Dec.  '.»7;  Iloimati  v.  rjjll,  107  III.  4(;7. 

■«  Smith  V.  Finch,  1  Scaui.  323. 

77 


§   47  VOID    JUDICIAL    SALES. 

iiu  order,  or  si  reference  which  did  not  fully  describe  the 
order,  would,  under  a  statute  similar  to  the  one  just 
alluded  to,  render  the  deed  void.^  Although  a  statute 
requires  the  order  of  sale,  and  also  that  of  confirmation,  to 
be  referred  to  or  set  out  in  the  deed,  a  mere  mistake  in  the 
reference  is  not  fatal,  if  it  appears  from  the  deed,  taken  as 
a  whole,  that  the  reference,  as  made,  is  a  mistake,  and  that 
it  was  intended  to  embrace  the  orders  under  which  the  sale 
and  deed  were,  in  fact,  made.-  The  same  rule  applies  to 
mistakes  and  omissions  in  the  recitals  in  deeds,  made  in 
pursuance  of  execution  sales. "^  Irrespective  of  any  statu- 
tory directions  on  the  subject,  every  administrator's,  exec- 
utor's or  guardian's  deed  should  refer  to  the  authority  or 
license  under  which  it  is  made;  should  state  that  the  person 
making  it  acted  under  such  license:  and  should  contain  apt 
words  to  convey  the  estate  of  the  ward  or  decedent,  as  con- 
tradistinguished from  the  private  estate  of  the  person  exe- 
cuting the  deed ;  *  but  it  need  not  recite  all  the  steps  taken 
in  making  the  sale,  as  that  the  sale  was  at  public  auction. 


1  Atkins  V.  Kinuuii,  20  Wend.  241;  s.  c,  32  Aui.  Dec.  r)34.  Contra. 
Hammanu  v.  Mink.  !»9  Ind.  279. 

-  Sheldon  v.  Wright,  5  N.  Y.  497;  Thomas  v.  Le  Baron,  8  Met.  361: 
Jones  V.  Taylor,  7  Tex.  242;  s,  c,  56  Am.  Dec.  48;  Moore  v.  Wingate,53 
Mo.  398:  Glover  v.  Kuffin,  6  Ohio,  255;  Clark  v.  Sawyer.  48  Cal.  133; 
Mitchell  V.  Bliss.  47  Mo.  3.53:  Speck  v.  Riggins.  40  Mo.  405;  Davis  v. 
Kline.  76  Mo.  310:  Williams  v.  Woodman,  73  Me.  163. 

3  Freeman  on  Executions,  sec.  329;  Brooks  v.  Rooney,  11  Ga.  423; 
s.  c,  56  Am.  Dec.  430:  Gonrdin  v.  Davis,  45  Am.  Dec.  745;  Howard  v. 
North,  51  Am.  Dec.  769;  Haskius  v.  Wallet,  63  Tex.  213:  Phillips  v. 
Coffee,  17  111.  154;  s.  c.,63  Am.  Dec.  357:  Keilh  v.  Keith.  104  111.  401: 
Humphrey  v.  Beeson,  1  G.  Greeue,  199;  s,  r.,  48  Am.  Dec.  370;  Harri- 
son V.  Maxwell,  2  X.  &  M.  C.  347;  s.  c,  10  Am.  Dec.  611 :  McGuire  v. 
Kouns,  7  Mon.  386:  s.  c  18  Am.  Dec.  187;  Martin  v.  Wilbourne,  2Hill. 
395;  .'^.  C,  27  Am.  Dec.  393:  Hind's  Heirs  v.  Scott,  11  Pa.  St.  19;  s.  C, 
51  Am.  Dec.  506;  Lamb  v.  Sherman,  19  Neb.  681. 

4  Jones  V.  Taylor,  7  Tex.  242:  s.  c,  56  Am.  Dec.  48;  Bobb  v.  Baruum, 
59  Mo.  394;  Griswold  v.  Bigelow,  6  Conn.  2.58;  Lockwoodv.  Sturdevant, 
6  Conn.  373.  The  two  cases  last  named  are  limited  in  Watson  v.  Watson. 
10  Conn.  77. 

7.S 


VOID    JUDICIAL    SALES.  §   47 

and  that  the  grantee  was  the  highest  bidder.'  Where  stat- 
utes exist,  directing  what  recitals  shall  be  set  forth  in 
sheriff's  deeds,  occasional  decisions  may  be  found  declaring 
such  deeds  void,  because  of  their  non-compliance  with  the 
statute.  These  decisions  will  generally  be  found  restricted 
to  cases  where  the  omission  in  the  deed  was  of  a  matter 
absolutely  essential  to  the  support  of  the  sale,  as  the  omis- 
sion to  recite  the  judgment,-  or  the  time  of  the  sale,  where 
sales  can,  under  the  statute,  take  place  only  at  certain  desig- 
nated times,  for  instance,  during  the  term  of  the  court.''  In 
other  words,  the  deed  must  show  an  authority  to  sell,  and 
that  such  authority  was  pursued  substantially  as  prescribed 
by  law.  Beyond  this,  even  in  the  States  where  statutes 
undertake  to  specify  the  recitals  to  be  inserted  in  a  sheriff's 
deed,  omissions  and  misrecitals  are  not  fatal.* 

Whether  the  deed  be  made  pursuant  to  an  execution  or 
a  judicial  sale,  the  description  of  the  property  which  has 
been  sold  and  which  the  officer  intends  to  convey  is  of 
special  importance.  We  apprehend  that  the  rules  by  which 
the  descriptive  parts  of  a  deed  must  be  interpreted  are  the 
same,  whether  the  deed  be  voluntary  and  executed  by  the 
grantor  in  person,  or  involuntary  and  executed  on  his  belialf 
by  some  officer  authorized  by   law.''     In  California,  it  was 

1  Kingsbury  v.  Wild,  3  X.  H  ;5(). 

2  DvTfour  V.  Carnfranc,  11  Mart.  607;  s.  c.  1:5  Am.  Dec.  :5(iO. 

»  Tanner  v.  Stine,  18  Mo.  .o80;  s.  C,  59  Am.  Dec.  :{20:  Martin  v.  l?on- 
sacb,  Gl  Mo.  556. 

^  Buchanan  v.  Tracy,  45  Mo.  437;  Strain  v.  Murphy,  49  Ind.  :{:57. 

s  "In  regard,  however,  to  the  description  of  the  property  conveyed, 
the  rules  are  the  same,  whether  the  deed  be  made  by  a  party  in  his  own 
right,  or  by  an  ollicer  of  tlie  court.  The  policy  of  tiie  law  does  not  re- 
quire courts  to  scrutinize  the  proceedings  of  a  judicial  sale  with  a  view 
to  defeat  them.  On  the  contrary,  every  reasonabh-  intoiiduHMit  will  be 
made  in  their  favor,  so  as  to  secure,  if  it  can  be  done  consistently  with 
legal  rules,  the  object  they  were  intended  to  accomplish."  While  v. 
Luning,  03  U.  S.  514;  Marshall  v.  Greenlield.  s  (;.  c^c.  .1.  358;  s.  (;.,  29 
Am.  Dee.  5.50;  llerrich  v.  Morrill,  37  Miiui.  250;  5  Am.  St.  K.  Sll  ; 
Atkinson  v.  Cunuuins,  0  How.  (U.  S.j  ^70:  Nelson  v.  Bradhach,  II  Mo. 
596;  s.  c,  100  Am.  Dec.  328,  seems  to  be  iiioonsisteiil  with  the  views 
here  expressed. 

7H 


§47  VOID   JUDICIAL    SALES. 

at  one  time  thought  that  a  judicial  sale  could  not  transfer 
title  unless  the  decree  directing  it  contained  a  description 
of  the  property  to  be  sold,  so  perfect  in  itself,  that  it  could 
be  understood  and  located  without  consulting  other  deeds 
or  records,  to  which  it  made  reference  for  the  purposes  of 
description.  This  view  no  longer  prevails.^  It  is  by  no 
means  essential  that  from  a  mere  inspection  of  the  descrip- 
tion the  court  should  be  enabled  to  know  what  lauds  are 
intended.  The  tract  may  be  designated  by  some  name  not 
understood  by  the  court,  but  perfectly  familiar  to  all  per- 
sons acquainted  with  the  neighborhood  in  which  the  land  is 
situated.  Evidence  may  always  be  received  to  show  the 
signification  of  such  a  name,  or  to  prove  that  any  other  de- 
scriptive words,  though  apparently  meaning  less  or  uncer- 
tain, do,  in  fact,  designate  a  particular  tract  in  such  a 
manner  that  its  identity  would  be  apparent  to  persons  to 
whom  it  is  familiar.-  The  deed  is  but  the  culmination  of 
various  antecedent  proceedings  upon  which  it  rests  and 
which  it  is  obviously  designed  to  make  effective.  The 
intent  of  the  officer  in  executing  the  deed,  where  not  suffi- 
ciently disclosed  by  the  deed  itself,  may  often  be  made 
apparent  by  consulting  these  proceedings.  If  the  descrip- 
tion employed  by  him  is  ambiguous  w'e  think  these  pro- 
ceedings may  be  inspected  for  the  purpose  of  making  it 
clear,  and  that  it  must  be  construed  as  applying  to  the  lands 
for  which  the  records  in  the  cause  show  that  a  conveyance 
should  have  been  made,  unless  to  so  construe  it,  is  to  do 
violence  to  its  express  terms. ^ 

1  De  Sepulveda  v.  Baugh,  74  Cal.  468;  .5  Am.  St.  R.  455. 

2  Freeman  on  Executions,  sec.  330. 

sMcGheev.  Hoyt.  100  Pa.  St.  516;  West  v.  Cochran,  104  Pa.  St.  482. 

80 


VOID    JLD1C:1AL    SALES. 


CHAPTER  V 


THK    I.KOAL    AM)    KQUITAliLE    RIGHTS    OK    ITKCHASERS 

AT    VOID    SALES, 

SECTION. 

48.  Purchaser's  Right  to  Resist  the  Payment  of  His  Hid. 

49.  Purchaser's  Riglit  to  ]iecover  ISIoncy  Paid. 

50.  Purchaser's  Right  to  Urge  Acts  of  Ratification   as  Estoppels  in 

His  Favor. 
.')!.     Purchaser's  Right  to  Subrogation  Denied. 

52.  Purchaser's  Right  to  Subrogation  AHirnied,  under  Execution  and 

Chancery  Sales. 

53.  Purchaser's  Right  to  Subrogation  AlUmied,  under  Probate  Sales. 

54.  Purchaser's  Right  to  Subrogation,  wheni  he  is  Guilty  of  Fraud. 

55.  Purchaser's  Right  to  Aid  of  Equity  in  Supplying  Omissions  and 
Correcting  Mistakes. 


^o 


§  48.  Purchaser's  Right  to  Resist  the  Payment  of  His 
Bid. — If  the  purchaser  at  a  void  execution  or  judicial  sale, 
be  so  fortunate  as  to  discover  the  true  character  and  effect 
of  the  sale,  prior  to  the  actual  payment  of  the  purchase 
price,  he  will,  of  course,  seek  to  avoid  making  such  pay- 
ment. No  doubt  the  bidder  at  a  void  sale  is  entitled  to  be 
released  from  his  bid.  "  The  purchaser  at  a  partition  sale 
is  entitled  to  the  whole  title  partitioned.  If,  from  any 
irre^riilarities  or  defects  in  the  suit  or  in  the  proceediuL^s,  the 
purchaser  would  not,  by  completing  his  bid  and  reeeivnig 
his  conveyance,  become  invested  with  the  whole  title  with 
which  the  court  assumed  to  deal,  then  be  will  be  released 
from  his  bid.     Hence,  if  jurisdiction  has  not  been  acquired 

Hi 


§   48  VOID    JUDICIAL    SALES. 

over  one  of  the  co-tenants,  the  purchaser  will  be  released.' 
So  in  purchases  untler  execution  sales,  the  purchaser  can- 
not be  compelled  to  make  payment,  if  the  proceedings  are 
so  defective,  in  any  respect,  that  they  cannot  divest  the 
title  of  the  judgment  debtor.'^  Every  purchaser  has  a  right 
to  suppose  that,  by  his  purchase,  he  will  obtain  the  title  of 
the  defendant  in  execution,  in  case  of  execution  sales,  and 
of  the  ward  or  decedent  in  the  case  of  a  guardian's  or 
administrator's  sale.  The  promise  to  convey  this  title,  is 
the  consideration  upon  which  his  bidls  made.  If  the  judg- 
ment or  order  of  sale  is  void,  or  if,  from  any  cause,  the 
conveyance,  when  made,  cannot  invest  him  with  the  title 
held  by  the  parties  to  the  suit  or  proceeding,  then  his  bid, 
or  other  ))romise  to  pay,  is  without  consideration,  and  can- 
not be  enforced.  He  may  successfully  resist  any  action 
for  the  purchase  money,  whether  based  upon  the  bid  or 
upon  some  bond  or  note  given  by  him.^  In  Mississippi, 
however,  he  cannot  avoid  paying  the  purchase  price  of  per- 
sonal property  of  which  he  has  obtained,  and  still  retains 
possession  by  virtue  of  the  sale.*  The  distinction  between 
void  sales  and  defective  titles  must  be  kept  in  view,  to  avoid 
any  misapprehension  of  the  rights  of  one  who  has  purchased 
at  an  execution  or  judicial  sale,  without,  in  fact,  obtaining 
anything.  If  he  obtains  nothing  because  of  a  defect  in  the 
proceedings,  he  can  defeat  an  action  for  the  amount  of  his 
bid.     If,  on  the  other  hand,  the  proceedings  are  perfect. 


1  Freeiiiiui  on  Cotenancy  and  Partition,  sec.  547. 

-  Freeman  on  Executions,  313/i. 

•"  Laughniau  v.  Thompson,  6  S.  &  M.  259;  Campbell  v.  Brown,  0  How. 
(Miss.)  230;  Bartee  v.  Thompkins,  4  Sneed,  623;  Todd  v.  Dowd,  1  Mete 
(Ky.)  281;  Barrett  v.  Churchill,  18  B.  Mon.  387;  Washington  v. 
McCaughan,  34  Miss.  304 ;  Kiddle  v.  Hill,  51  Ala.  224 ;  Verdin  v.  Slocum, 
71  N.  Y.  345;  Goode  v.  Crow,  51  Mo.  212;  Boykiu  v.  Cook,  61  Ala.  472; 
Burns  v.  Ledbetter,  56  Tex.  282;  Dodd  v.  Neilson,  90  N.  Y.  243;  Threft 
V.  Fritz,  7  111.  App.  55;  Short  v.  Porter,  44  Miss.  533;  note  to  Burns  v. 
Hamilton,  70  Am.  Dec.  580. 

•*  Washington  v.  McCaughan,  34  Miss.  304;  Martin  v.  Tarver.  43  Miss. 
517;  Jaggers  v.  Griffin,  43  Miss.  134. 

82 


VOID    .lUDICIAL    SALES.  §   48 

but  the  defendant,  or  ward,  or  decedent,  had  no  title  to  be 
sold  nor  conveyed,  the  purchaser  is  nevertheless  bound  by 
his  bid,  if  he  has  permitted  an  order  of  contirniation  to  be 
entered  against  him,  without  objection  ;  or,  if  notwithstand- 
ing his  objections,  such  order  has  been  entered  and  remains 
in  force.  In  some  of  the  States  caveat  emptor  is  the  rule 
of  all  execution  and  judical  sales.  Each  bid  is  made  for 
such  title  as  the  defendant,  ward  or  decedent  may  have,  and 
is,  therefore,  binding,  whether  either  had  title  or  not.^ 
"But  the  better  rule  is  that,  in  equity  sales,  the  purchaser 
is  entitled  to  receive  a  title  free  from  equities  and  incum- 
brances of  which  he  had  no  notice;  and  if,  by  the  sale,  he 
will  not  receive  such  title,  h6  will  not,  on  his  making  ob- 
jection, be  compelled  to  complete  his  purchase,  but  will  be 
released  therefrom,  unless  the  title  can  be  made  good,  or 
other  just  relief  awarded.'"^  When  the  sale  has  been  made 
))ursuant  to  a  decree  in  chancery,  and  the  purchaser  seeks 
relief  by  resisting  its  confirmation,  he  is  entitled  to  have 
applied  in  his  favor  the  general  principles  of  equity  juris- 
prudence, and  to   be  released   from    his   bid,  when   to   do 

1  Freeman  on  Cotenancy  and  Partition,  sec.  547 ;  Osterberg  v.  Union 
Trust  Co..  93  U.  S.  424;  McManus  v.  Keith,  49  111.  389;  Short  v.  Porter, 
44  Miss.  533;  Bassett  v.  Lockard,  GO  111.  1(54;  Boykin  v.  Cook,  61  Ala. 
472;  England  v.  Clark,  4  Scam.  48G;  Boro  v.  Harris,  13  Lea,  36;  Holmes 
V.  Shafer,  78  111.  578;  Dunn  v.  Frazier,  S  Blackf.  432;  Kodgers  v.  Smith, 
1  Ind.  526;  Dean  v.  Morris,  4  G.  Greene,  312;  Islay  v.  Stewart,  4  D.  «fc 
B.  160;  Richardson  v.  Vicker,  74  N.  C.  278;  Rollins  v.  Henry,  78  N.  C. 
342.  The  rule  was  applied  against  purchasers  at  i>robate  sales  in  Worth- 
ington  V.  McRoberts,  9  Ala.  297;  Jennings  v.  Jennings'  Adm'-.,Id.,  291 ; 
Owen  V.  Slalter,  26  Ala.  547;  s.  C,  62  Am.  Dec.  745;  Byrd  v.  Turpin,62 
Ga.  .591  ;  Colbert  v.  Moore,  64  Id.  502;  Tilley  v.  Bridges,  105  1)1.336; 
London  v.  Robertson,  5  Blackf.  276;  Cogan  v.  Frisbj^  36  JNliss.  185; 
Thompson  v.  Muuger,  15  Tex.  523;  s.  c,  65  Am.  Dec.  176;  Burns  v. 
Hamilton,  .33  Ala.  210;  s.  c,  70  Am.  Dec.  570;  Jones  v.  Warnock.  67 
Ga.  484;  King  v.  Gunnison,  4  Pa.  St.  171. 

2  Note  to  Burns  v.  HiuniitcMi,  70  Am.  Dec.  575,  citing  Scott  v.  Bentel, 
23  Gratt.  1 ;  Bolivar  v.  Zeigler,  9  S.  C.  287;  Monaghan  v.  Small,  6  S.  C. 
177;  Kostenbader  v.  Spotts,  80  Pa.  St.  430;  Kdney  v.  Kdney,  80  N.  C. 
81;  Monaniue  v.  Mouarque,  SO  X.  Y.  320;  Hunting  v.  Waiter,  33  Md. 
(50. 

83 


§   49  VOID    JUDICIAL    SALES. 

otherwise  would  be  to  treat  him  in  an  unconscionable  man- 
ner. With  respects  to  defects  in  the  title  to  the  property 
sold,  "  the  purchaser  will  be  relased,  and  any  payment  made 
by  him  and  remaining  within  the  control  of  the  court  will 
be  returned  if  the  condition  of  the  title  is  such  that  he 
would  not  be  required  to  accept  it  were  the  contract  be- 
tween him  and  a  private  individual.  The  court  is  the 
vendor,  and  it  will  not  enforce  a  contract  in  its 
own  favor,  of  which  it  would  refuse  to  decree  the 
execution,  if  the  vendor  were  a  private  person.^  If  the 
bidder  wishes  to  be  released  from  his  bid  for  defects  in  the 
title  or  proceedings,  he  should  seek  redress  when  the  sale 
is  reported  for  confirmation.  The  confirmation  is  binding 
on  the  purchaser,  and  after  that  he  is  precluded  from 
objecting  that  the  title  was  imperfect  or  incumbered,  and 
thus  avoiding  the  payment  of  his  bid.- 

§  49.  The  Purchaser's  Right  to  Recover  Back  Money 
Paid. — Whoever  pays  out  money  on  account  of  a  purchase 
made  at  a  void  sale,  parts  with  a  valuable  consideration,  for 
which  he  acquires  nothing.  The  question  then  arising,  is: 
Has  the  purchaser  any  remedy?  and,  if  so,  what  is  the  rem- 
edy, and  to  what  cases  may  it  be  applied  with  success? 
Where  the  plaintiff  is  the  purchaser,  he  may,  in  most  States, 
upon  failure  of  his  title,  in  effect  vacate  the  apparent  satis- 
faction produced  by  the  sale,  and  obtain  a  new  execution. =^ 

1  Freemau  on  Executions,  sec.  304/i-. 

-  Williams  v.  Glenn's  Admr.,  7  S.  W.  Rep.(Ky.)  610 ;  Osteiberg  v.  Union 
Trust  Co.,  93  U.  S.  424;  Dresbach  v.  Stein,  41  Ohio  St.  70;  Mechanics'  S. 
&  B.  Assn.  V.  O'Conner,  29  Ohio  St.  6.51;  Barron  v.  Mullin,  21  Minn.  374; 
Holmes  v.  Shaver,  78  111.  578;  Thomas  v.  Davidson,  76  Va.  344;  Hickson 
V.  Rucker,  77  Va.  135 ;  Long  v.  Weller,  29  Gratt.  347 ;  Threlkelds  v. 
Campbell,  2  Gratt.  198;  s.  c,  44  Am.  Dec.  384;  Capehart  v.  Dowery,  10 
W.  Va.  130;  Farmers'  Bank  v.  Peters,  13  Bush,  591 ;  Housley  v.  Lindsey, 
10  Heisk.  651;  Anderson  v.  Foulks,  2  H.  &G.  346;  Farmers' Bank  v. 
Martin,  7  Md.  342;  s.  c,  61  Am.  Dec.  350;  Bassett  v.  Lockard,  60  111. 
164;  Cashion  v.  Fania,  47  Mo.  133. 

3  Freeman  on  Executions,  sees.  ,54  and  352;  Sargedt  v.  Sturm,  23  Cal. 
359;  s.  c,  83  Am.  Dec.  118;  Piper  v.  Elwood,  4  Den.  165;  Adams  v. 
Smith,  5  Covsr.  280;  Watson  v.  Reissig,  24  111.  281. 

84 


VOID    .11  DKIAL    SAI.i:.«;.  §   49 

If  the  title  fails  thr{)uo:h  defects  in  the  proceedings,  arising 
from  the  neglect  or  misconduct  of  the  sheriff,  the  purchaser 
can  sustain  an  action  on  the  case  against  that  officer.^ 
Where  a  purchase  is  made  under  a  decree  in  equity,  and 
such  decree  is  reversed  for  a  jurisdictional  defect  in  the 
proceedings,  or  where  the  title  fails  because  the  grantee  of 
a  mortgagor  was  not  a  party  to  a  foreclosure,  the  plaintiff 
has  the  right  to  prosecute  further  proceedings.  In  the  case 
first  named,  he  nuw  have  the  process  properly  served,  and 
thus  give  the  court  jurisdiction  to  proceed.  In  the  second 
named  case,  he  may  apply  to  the  court,  have  the  sale 
vacated,  the  satisfaction  cancelled,  and  then,  by  supple- 
mental bill,  bring  in  the  proper  parties,  and  have  the  prop- 
erty re-sold.  In  either  case  the  purchaser  may,  by  apply- 
ing to  the  court  in  the  original  suit,  have  the  proceedinafs 
conducted  for  his  benefit,  though  in  the  name  of  the  origi- 
nal plaintiff.'-  In  New  York  and  Tennessee,  if  the  proceed- 
ings are  utterly  void,  the  purchaser  may  recover  from  the 
plaintiff  the  amount  paid  upon  the  hitter's  judgment."  In 
Texas,  if  a  sale  under  a  valid  judofment  be  void  for  defects 
in  the  proceedings,  the  purchaser  is  entitled  to  the  property, 
unless  the  defendant  will  reimburse  him  for  the  amount  he 
has  paid  toward  satisfying  the  judgment.^     In    Kentucky, 

1  Sexton  V.  Xever.s,  20  Pick.  451 :  s.  c,  32  Am.  Dec.  22r>. 

2  Boggs  V.  Hargrave,  16  Cal.  559:  s.  c,  70  Am.  Dec.  561 ;  Barton  v. 
Lies,  21  Cal.  87;  Johnson  v.  Robertson.  :54  Md.  165;  Cook  v.  Toumbs.  :$6 
Miss.  685;  Hudgin  v.  Hudgin,  6  Gratt.  320;  s.  C.  52  Am.  Dec.  124.  Set- 
also  Scott  V.  Dunn,  1  D.  &  B.  Eq.  425. 

3  Chapman  v.  Brooklyn,  40  X.  Y.  372;  Schvviuger  v.  Hickok,  53  N.  Y. 
280;  Henderson  v.  Overton,  2  Yerg.  394;  s.  C,  24  Am.  Dec.  492.  The 
principle  upon  which  these  cases  profess  to  proceed  is,  that  a  party  may 
recovei-  moneys  paid  where  there  is  a  total  failure  of  consideration. 
This  principle  ix  sulliciently  supported  by  the  authoritie;?  (Moses  v.  .Mc- 
Farlane.  2  Burr.  1009;  Rheel  v.  llices,  25  N.  Y.  289;  Kingston  Bank  v. 
Elting«'.  40  N.  Y.  391;  s.  C,  100  Am.  Dec.  516);  but  wo  doubt  its  aj)- 
plicability  to  execution  sales. 

^Johnson  v.  Caldwell,  38  Tex.  218;  lb. ward  v.  \orth.  5  Tex.  290;  s. 
c,  51  Am.  Dec.  789.  A  person  seeking  to  cancel  a  sheriff's  deed  as  a 
cloud  upon  his  title,  nujst.  in  Texas,  first  repay  the  am..iini  for  which 

85 


§   49  VOID    JUDICIAL    SALES. 

Missouri,  Indiana,  Illinois  and  Texas,  if  tiie  defendant  in  ex- 
ecution has  no  title,  he  may  be  compelled,  by  proceedings  in 
equity,  to  reimburse  the  purchaser  for  the  amount  contrib- 
uted by  means  of  the  purchase,  to  the  satisfaction  of  the  judg- 
ment.^ But  we  think  the  better  rule  is  that,  unless  proceed- 
ing upon  the  ground  of  fraud  or  misrepresentation,  or  some 
other  well  known  ground,  a  purchaser  at  an  execution  sale 
cannot,  by  any  independent  action,  recover  of  either  of  the 
parties  the  amount  of  his  bid.^  Such  an  action  is,  neces- 
sarily, founded  upon  a  mistake  of  law.  The  purchaser 
is  sure  to  base  his  claim  upon  the  fact  that  he  mistook  the 
legal  effect  of  the  proceedings  in  the  case,  or  of  the  defend- 
ant's muniments  of  title.  And  it  is  well  known  that  a  mis- 
take of  law  is  not  a  sufficient  foundation  for  relief  at  law 
or  in  equity.  The  rule  of  caveat  em-ptor  unquestionably 
applies  to  execution  sales;  and  we  know  not  how  this  rule 
can  co-exist  with  another  rule  requiring  one  of  the  parties 
to  indemnify  the  purchaser  in  the  event  of  a  failure  of  the 
title.  In  a  few  of  the  States,  purchasers  have  been  given  a 
statutory  remedy.^  The  purchaser  at  a  void  execution  sale 
may,  by  the  payment  of  his  bid,  wholly  or  partly  discharge 

the  property  was  sold  by  the  sheriff.  Herudon  v.  Rice,  21  Tex.  457; 
Morton  v.  W^elborn,  21  Tex.  773;  Brown  v.  Lane,  19  Tex.  205. 

1  McGhee  v.  Ellis,  4  Litt.  245;  s.  c,  16  Am.  Dec.  124;  Muir  v.  Crai^, 
3  Blackf.  293;  s.  c,  25  Am.  Dec.  Ill;  Warner  v.  Helm,  1  Gilm.  220; 
Price  V.  Boyd,  1  Dana,  436;  Hawkins  v.  Miller,  26  Ind.  173;  Preston  v. 
Harrison,  9  Ind.  1;  Jones  v.  Henry,  3  Litt.  435;  Dunn  v.  Frazier,  8 
Blackf.  432;  Pennington  v.  Clifton,  10  Ind.  172;  Richmond  v.  Marston, 
15  Ind.  134;  Julian  v.  Bell,  26  Ind.  220;  s.  c,  89  Am.  Dec.  460;  Howard 
V.  North,  5  Tex.  290;  S.  C,  51  Am.  Dec.  769;  Arnold  v.  Cord,  16  Ind. 
177;  Taylor  v.  Conner,  7  Ind.  115;  Wilchinsky  v.  Cavender,  72  Mo.  192; 
Burns  v.  Ledbetter,  56  Tex.  282;  Reed  v.  Crosthwait,  6  Iowa,  219;  s.  C, 
71  Am.  Dec.  406. 

2  Branham  V.  San  Jose,  24  Cal.  585;  Boggs  v.  Hargrave,  16  Cal.  559; 
s.  C,  76  Am.  Dec.  561;  Salmond  v.  Price,  13  Ohio,  368;  s.  C,  42  Am. 
Dec.  204;  Laws  v.  Thompson,  4  Jones,  104;  Halcombe  v.  Loudermilk,  3 
Jones,  491;  The  Monte  AUegre,  9  Wheat.  616;  Burns  v.  Hamilton,  33 
Ala.  210. 

3  C.  C.  P.  of  Cal.,  sec.  708;  Halcombe  v.  Loudermilk,  3  .Jones,  491; 
Chambers  v.  Cochran,  18  Iowa,  160. 


VOID    JUDICIAL    SALES.  §   50 

some  lien  or  claim  on  the  property  purchased.  The  ques- 
tion then  arising  is  this :  Has  he  the  right  to  hold  the 
property  until  the  amount  thus  paid  is  refunded  to  him? 
The  consideration  of  this  question  is  reserved  for  a  subse- 
quent section.^ 

§  50.  Ratiflcation  of  Void  Sales  by  the  Acts  of  the 
Parties  in  Interest. — As  a  general  rule,  a  confirmation  or 
ratification  cannot  strengthen  a  void  estate.  "  For  con- 
firmation may  make  a  voidable  or  defeasible  estate  good, 
but  cannot  operate  on  an  estate  void  in  law."^  If  this  rule 
be  one  of  universal  application,  then  there  can  be  no  neces- 
sit}'  for  considering  the  question  of  ratification  in  connection 
with  void  judicial  sales.  But  this  is  one  of  those  rules 
which  are  so  limited  by  exceptions,  that  the  circumstances 
to  which  it  may  be  applied  are  scarcely  more  numerous 
than  those  from  which  its  application  must  be  withheld. 
There  can  now  be  scarcely  any  doubt  that  void  judicial  sales 
are  within  the  exceptions,  and  are  unaffected  by  the  rule.^ 
These  sales  may  be  ratified  either  directly  or  b}'  a  course 
of  conduct  which  estops  the  party  from  denying  their  valid- 
ity. Thus,  if  the  defendant  in  execution,  after  a  void  sale 
of  his  property  has  been  made,  claims  and  receives  the  sur- 
plus proceeds  of  the  sale,  with  a  full  knowledge  of  his 
rio-hts,  his  act  must  thereafter  be  treated  as  an  irrevocable 
confirmation  of  the  sale.*  In  a  case  decided  in  Pennsyl- 
vania, a  judgment  was  recovered  against  the  administrator 
of  an  estate.     The  heirs  of  the  decedent  were  not  parties  to 

^  See  sees.  .51-53. 

2  Bouvier's  Law  Die,  title  "Confirmation." 

3  Maple  V.  Kussart,  .53  Pa.  St.  348;  s.  C,  91  Am.  Dec.  214;  Johnson 
V.  Fritz,  44  Pa.  St.  449;  Deford  v.  Mercer,  24  Iowa,  118;  s.  c,  92  Am. 
Dec.  460;  Pursley  V.  Hays,  17  Iowa,  310;  Johnson  v.  Cooper,  ;")«  Miss. 
608. 

^Stroble  v.  Smith,  8  Watts,  280;  Ileaden  v.  Oubre,  2  Lu.  An.  142; 
Sittig  V.  Morgan,  5  La.  An.  574;  McLeod  v.  Johnson,  28  Miss.  374; 
Southard  v.  Perry,  21  Iowa,  488;  s.  c,  89  Am.  Dec.  587;  State  v. 
Stanley,  14  Ind.  409;  Crowell  v.  McConkey,  5  Pa.  St.  IGH;  Iluffinau  v. 
Gaines,  47  Ark.  227. 

87  (7) 


§   50  VOID    JUDICIAL    SALES. 

the  action  in  which  this  judgment  were  recovered,  and  were^ 
therefore,  under  the  laws  of  that  State,  unaffected  by  it. 
Under  this  judgment,  writs  were  issued,  and  lands  of  the 
decedents  levied  upon,  condemned  and  sold.  They  pro- 
duced funds  more  than  sufficient  to  satisfy  the  judgment. 
The  surplus  was  paid  to  the  heirs.  One  of  the  daughters 
having  brought  ejectment  for  the  lands,  the  supreme  court, 
in  discussing  and  determining  her  rights,  said:  *'She  was 
perfectly  acquainted  with  the  fact  that  she  had  nobeent 
served  with  process  to  make  her  a  party  to  the  judgment  on 
which  the  sale  was  made,  and  that  she  had  not  voluntarily 
made  herself  a  party  to  that  proceeding  without  process; 
and  there  is  no  evidence  to  repel  the  presumption  that  she 
was  equally  well  acquainted  with  the  rules  of  law  which 
entitled  her  to  disregard  a  sale  made  under  such  a  judg- 
ment, as  having  no  operation  whatever  upon  her  rights,^ 
unless  she  did  some  act  which,  on  principles  of  equity  and 
common  honest}^  might  estop  her  from  impeaching  it.  As 
she  was  not  a  defendant  in  the  execution,  she  had  no  right, 
in  that  character,  to  receive  any  part  of  the  money,  after 
payment  of  the  creditor's  claim.  Her  only  title  to  the 
money  depended  upon  the  effect  of  the  proceedings  in  di- 
vesting her  estate  in  the  land,  and  converting  it  into  money, 
by  passing  her  title  to  the  purchasers.  Upon  this  ground 
alone  could  she  make  any  claim  to  the  money,  in  law  or 
equity.  The  receipt  of  her  share  of  the  money  was,  there- 
fore, an  affirmation  that  her  title  had  passed  to  the  pur- 
chasers by  virtue  of  the  sheriff's  sale;  and  she  cannot  be 
received  to  make  a  contrary  allegation  now,  to  the  injury 
of  those  who  paid  their  money  on  the  faith  of  the  convey- 
ance. Where  a  sale  is  made  of  land,  no  one  can  be  per- 
mitted to  receive  both  the  money  and  the  land.  Even  if 
the  vendor  possessed  no  title  whatever  at  the  time  of  the 
sale,  the  estoppel  would  operate  upon  a  title  subsequently 
acquired."  It  was  held  by  this  court,  at  the  late  sitting  in 
Harrisburg,  that    "  equitable  estoppels   of    this  character 

88 


VOID    JUDICIAL    SALES,  §   50 

apply  to  infants  as  well  as  adults,  to  insolvent  trustees  and 
guardians  as  well  as  persons  acting  for  themselves,  and  have 
place  as  well,  where  the  proceeds  arise  from  a  sale  by 
authority  of  law,  as  where  they  spring  from  the  act  of  the 
party. ^  The  application  of  this  principle  does  not  depend 
upon  any  supposed  distinction  between  a  void  and  voidable 
sale.  The  receipt  of  the  money,  with  the  knowledge  that 
the  purchaser  is  paying  it  upon  an  understanding  that  he  is 
purchasing  a  good  title,  touches  the  conscience,  and,  there- 
fore, binds  the  right  of  the  party  in  one  case  as  well  as  the 
other. "2  Perhaps  it  is  not  essential  that  the  defendant  in 
execution  should  have  directly  received  any  part  of  the  pro- 
ceeds of  the  sale.  If  he  knows  of  the  sale,  makes  no  objec- 
tions thereto,  and  permits  the  proceeds  to  be  applied  to  the 
payment  of  his  debts,  he  will,  at  least  in  Pennsylvania,  be 
precluded  from  denying  its  validity .='  If  lands  be  sold  at  a 
partition  or  other  chancery  sale,  no  co-tenant,  who  has 
claimed  and  received  his  share  of  the  proceeds,  can  deny 
the  validity  of  the  partition.  He  cannot  be  allowed  to  re- 
tain the  money  and  regain  the  land.''  The  same  principle 
applies  to  sales  made  by  guardians,  administrators  and  ex- 
ecutors. A  ward  or  heir  may  elect  to  affirm  a  void  sale, 
and  thus  entitle  himself    to  the  proceeds.^     When  a  valid 

1  Commonwealth  V.  Shuman's  Admr.,  6  Harris,  346;  McPherson  v. 
Cunliff,  11  S.  &  R.  426;  s.  c,  14  Am.  Dec.  642;  Wilson  v.  Bigger,  7  W. 
&  Ser.  Ill;  Stroble  v.  Smith,  8  Watts,  280;  Benedict  v.  Montgomery,  T 
\V.  &  Ser.  238;  s.  €.,  43  Am.  Dec.  230;  Martin  v.  Ives,  17  Ser.  &  R.  364; 
Crowell  V.  McConkey,  5  Barr,  168;  Hamilton  v.  Hamilton,  4  Barr,  103; 
Dean  v.  Connelly,  6  Barr,  239 ;  Robinson  v.  Justice,  2  Pa.  Rep.  19 ;  s.  C, 
21  Am.  Dec.  407;  Share  v.  Anderson,  7  Ser.  &  R.  48;  s.  c,  10  Am.  Dec. 
421;  Furness  v.  Ewing,  2  Barr,  479;  Adlum  v.  Yard,  1  Rawle,163;  s.  c, 
18  Am.  Dec.  608. 

2  Smith  V.  Warden,  19  Pa.  St.  429. 

a  Spragg  V.  Shriver,  25  Pa.  St.  281;  S.  C,  64  Am.  Dec.  608;  MitcJiell  v. 
Freedloy,  10  Pa.  St.  208;  Maple  v.  Kussart,  .')3  Pa.  St.  352;  s.  c,  91  Anu 
Dec.  214;   VVilliard  v.  Williard,  56  Pa.  St.  128. 

^  Tooley  v.  Gridley,  3  S.  &  M.  493;  s.  C,  51  Am.  Dec.  628;  Merritt  v. 
Home,  5  Ohio  St.  307;  s.  c,  67  Am.  Dec.  298. 

•''  Jennings  v.  Kee,  5  Itid.  •257. 


§    50  VOID    JUDICIAL    SALES. 

election  is  once  made,  it  cannot  be  revoked.  The  ratifica- 
tion by  a  ward  or  heir  of  a  sale,  made  by  an  administrator 
or  guardian,  may  be  made  also  by  receiving  the  proceeds  of 
the  sale.^  Of  course,  this  ratification  cannot  be  accom- 
plished through  the  action  of  a  minor,  or  of  any  person  not 
competent  to  act  for  himself .^  If  the  person  whose  prop- 
erty was  sold  be  a  minor,  he  cannot  ratify  the  sale  until 
after  he  becomes  of  lawful  age.  Nor  can  anyone  ratify  for 
him  during  his  minority.  No  act  done  or  sanctioned  by  his 
guardian  can  bind  him  as  a  ratification;  nor  will  he  be  held 
to  aiErm  the  sale  merely  on  the  ground  that,  during  his 
minority,  the  proceeds  were  applied  to  his  use  or  for  his 
benefit,"^  nor  because  such  proceeds  were  accounted  for  by 
the  administrator  in  his  settlements  with  the  estate,  no  part 
being  paid  over  to  the  heir.*  In  Missouri  and  Wisconsin, 
the  receipt  of  the  proceeds  of  a  guardian's  sale  by  a  minor 
after  coming  of  age,  or  by  a  lunatic  after  becoming  sane, 
does  not  operate  as  an  affirmance  of  the  sale.^  The  hard- 
ship of  this  rule  is  very  materially  ameliorated,  in  the 
States  nnined,  by  the  adoption  of  another  rule,  under  which 
a  bona  jidc  purchaser  of  lands  sold  at  a  void  judicial  sale  is 
entitled  to  retain,  in  many  cases,  a  charge  or  lien  on  the 
property,  for  the  amount  paid  by  him.  It  is  essential  to 
every  valid  ratification,  that  the  ratifying  acts  were  done 
with  a  full  knowledge  of  the  facts  constituting  the  transac- 
tion  to  be  ratified.*' 

lib.;  Lee  v.  Gardner,  26  Miss.  521;  Pursley  v.  Hays,  17  Iowa,  310; 
Deford  v.  Mercer,  24  Iowa,  118;  s.  C,  92  Am.  Dec.  460;  Wilson  v.  Big- 
ger, 7  W.  &  S.  Ill;  Handy  v.  Noonan,  51  Miss.  166;  Parmelee  v.  Mc- 
Ginty,  52  Miss.  475;  Walker  v.  Mulvean,  76  111.  18;  Corwin  v.  Shoup,  76 
111.  246. 

2  A  feme  covert  may  affirm  a  void  sale  by  receiving  the  proceeds. 
Kempe  v.  Pintard,  32  Miss.  324. 

3  Requa  V.  Holmes,  26  N.Y.  338;  Wilkinson  v.  Filby,  24  Wis.  441; 
Longworth  v.  Gofortb,  Wrigbt,  192. 

^  Townsend  v.  Tallent,  33  Cal.  45;  s.  C,  91  Am.  Dec.  617. 

5  Valle  V.  Feming,  19  Mo.  454;  s.  C,  61  Am.  Dec.  566;  Mohr  v.  Tulip, 
40  Wis.  66. 

6  Dolargue  v.  Cress,  71  111.  380. 

90 


VOID    JUDICIAL    SALES.  §   51 

§  51.  Rij?lit  of  Purchasers  to  be  Subrogated  to  the 
Lieii  Discharged,  Denied. — A  judicial  or  execution  sale  is 
usually  made  for  the  purpose  of  satisfying  some  lien  or 
charge  on  the  property  sold.  After  such  sale  is  made,  and 
the  amount  of  the  bid  paid,  the  owner  of  the  property,  if 
he  can  avoid  the  sale,  will  not  only  retain  the  property 
which  was  originally  his,  but  will  also  have  its  value 
enhanced  by  the  amount  paid  to  remove  the  charge  or  lieu 
therefrom.  According  to  natural  equity,  it  is  clear  that  the 
owner  ought  not  to  thus  to  protit  by  the  sale,  and  that  the 
purchaser  ought  to  be  subrogated  to  the  rights  of  the  holder 
of  the  charge  or  lien.  There  is  some  doubt  whether  the 
equity  which  is,  in  fact,  administered  by  the  courts,  en- 
forces, in  this  case,  what  we  deem  to  be  the  dictates  of  nat- 
ural equity.  In  a  case  decided  in  Indiana,  an  execution 
sale  was  made  under  a  valid  judgment,  but  the  sale  itself 
was  inoperative,  on  account  of  a  non-compliance  with  the 
appraisement  law.  The  purchaser,  however,  claimed  that 
he  was  entitled  in  equity  to  be  subrogated  to  the  rights  of 
the  judgment  creditor.  The  supreme  court,  in  denying  the 
claim,  said:  "  Can  the  doctrine  of  subrogation  be  applied 
to  the  case  made  by  the  record?  This  is  the  main  inquiry 
in  the  case.  We  are  not  advised  of  any  direct  adjudication 
on  the  point  involved  in  this  question  ;  but  there  are  vari- 
ous authorities  to  the  effect  that  'it  is  only  in  cases  where 
the  person  paying  the  debt  stands  in  the  situation  of  a 
surety,  or  is  compelled  to  pay  in  order  to  protect  his  own 
interest,  or  in  virtue  of  legal  i)rocess,  that  equity  substi- 
tutes him  in  place  of  the  creditor,  as  a  matter  of  course, 
without  any  special  agreement.  A  stranger  paying  the  debt 
of  another,  will  not  be  subrogated  to  the  creditor's  liirht,  in 
the  absence  of  an  agreement  to  that  effect ;  payniont  by 
such  person  absolutely  extinguisiies  the  debt  and  security.'^ 
This  exposition  being  correct,  and  we  think  it  is,  we  are 
unable  to  perceive  any  ground   ufjon   which  the  decree,  so 

1 1  Leading  Cases  in  Equity,  li:J,  and  authorilK.s  ilicrr-  cite  I. 


§   51  VOID    JUDICIAL    SALES. 

fur  as  it  subrogates  the  plaintiffs  to  the  rights  of  the  judg- 
ment creditor,  can  be  maintained.  The  position  of  Marston 
was  that  of  an  ordinary  vendee  at  a  sheriff's  sale,  and  noth- 
ing more.  There  is,  indeed,  nothing  in  the  case  in  any 
degree  tending  to  show  that  the  protection  of  his  interest 
required,  or  even  induced,  the  purchase.  He  purchased  the 
hind  and  paid  for  it  voluntarily;  we  must,  therefore,  hold 
that  the  amount  which  he  paid  to  the  sheriff  operated  as  a 
discharge,  ^?'o  tanto,  of  the  creditor's  judgment;  and  that 
judgment  being  thus  satisfied,  there  could  be  no  substitu- 
tion." ^  The  quotation  we  have  just  made,  very  fairly  rep- 
resents the  reasoning  of  those  courts,  which  hold  that  the 
purchaser  at  avoid  execution  or  judicial  sale  cannot  be  sub- 
rogated to  the  rights  of  the  holder  of  the  lien  which  his 
payment  has  contributed  to  discharge.  It  must  be  con- 
fessed that  the  reasoning  is  in  consonance  with  the  general 
l.'iw  of  subrogation.  This  general  law  affords  no  encourage- 
ment  to  one  person,  who  voluntarily  discharges  the  debt  of 
another.  Such  a  person  is  styled  a  volunteer.  His  acts 
are  without  compulsion,  and  he  is,  therefore,  not  classed 
with  those  persons  who  are  compelled,  as  sureties  or  other- 
wise, to  discharge  obligations  on  which  others  are  primarily 
responsible.  The  purchaser  at  a  void  judicial  sale  acts  under 
a  mistake  of  law  ;  and  this,  as  is  well  known,  is  rarely,  if 
ever,  recognized  as  sufficient  to  induce  the  interposition  of 
courts  of  equity.  Purchasers  at  void  probate  sales  have 
also  been  judged  not  to  be  entitled  to  subrogation  to  the 
rights  of  the  creditors  whose  claims  their  purchases  had 
discharged,-  but  the  right  of  purchasers  at  a  void  judicial 
sale,  whether  in  probate  or  chancery,  to  subrogation,  is 
steadily  gaining  ground,  and  is  now  established    by  the  de- 


i  Richmond  v.  Marston,  15  Ind.  136;  s.  c,  42  Am.  Dec.  204. 

2  Chambers  v.  Jones,  72  111.  279;  Bishop  v.  O'Conner,  69  111.  431 ;  Kin- 
ney V.  Knoebel,  .51  111.  112;  Nowler  v.  Coit,  1  Ohio,  236;  s.  c  13  Am. 
Deo.  640;  Salmond  v.  Price,  13  Ohio,  368;  Lieb  v.  Ludlow,  4  Ohio,  469. 
The  iule  in  this  State  has  been  changed  by  statute. 

92 


NOID    JUDICIAL    .SALES  §   52 

<?ided  prei)ondeniuee  of  authority,  as  will  appear    fiotn   the 
following  sections. 

§  52,  Right  of  Purchasers  at  Execution  and  Chancery 
Sales  to  Subrogation,  Affirmed — We  pass  now  to  the 
authorities  in  conflict  with  those  cited  in  the  preceding  sec- 
tion. From  these  authorities  it  will  be  seen  that  the  rio-ht 
of  purchasers  at  void  sales,  to  be  subrogated  to  the  claims 
they  have  discharged  by  their  payments,  is  very  generally 
recognized  in  this  country.  In  Kentucky,  a  slave  named 
Jack,  was  sold  under  execution  against  an  estate,  and  was 
purchased  by  Enos  Daniel.  The  slave  was  subsequently 
recovered  from  Daniel  in  an  action  of  detinue,  under  a  title 
paramount  to  that  of  the  decedent.  Daniel  then  com- 
menced a  suit  in  chancery  to  be  subrogated  to  the  rights  of 
the  holder  of  the  judgment  under  which  the  sale  had  been 
made.  The  case  was,  therefore,  one  in  which  the  title  had 
failed,  not  from  any  defect  in  the  sale  or  judgment,  but 
because  the  defendant  in  execution  was  not  the  owner  of  the 
property.  The  court,  nevertheless,  sustained  the  claim  for 
subrogation,  saying:  "Admitting  that  Enos  Daniel  knew 
that  Jack  belonged  to  Mary  McLaughlin,  and  was  not  sub- 
ject to  execution  against  the  estate,  this,  in  our  judgment, 
presents  no  legal  impediment  to  his  claim  upon  the  estate 
for  the  amount  of  Clark's  demand  paid  by  him.  The  slave 
was  sold  as  the  property  of  the  estate,  under  the  process  of 
law;  he  purchased  him,  and  by  his  purchase  and  execution 
of  a  sale-bond  to  Clark,  he  satisfied  and  extinguished  that 
amount  against  the  estate,  and  for  which  it  stood  resj)onsi- 
ble.  And, according  to  the  principle  repeatedly  recognized 
in  this  court,  he  has  an  equitable  right  to  be  substituted  in 
place  of  the  creditor,  and  to  have  the  amount  so  paid  re- 
funded to  him  out  of  the  estate.  His  equity  rests,  not 
upon  the  ground  of  his  want  of  knowledge  as  to  the  title  of 
the  slave,  but  on  the  ground  of  his  having  discharged  a 
judgment  against  the  estate,  for  which  it  stood  chargeable, 
by  a  purchase  of  property  made  under  the  coercive  process 

93 


§   53  VOID    JUDICIAL    SALES. 

of  the  law  ;  and,  therefore,  has  equitable  right  to  be  reim- 
bursed out  of  the  estate."  ^  In  South  Carolina,  a  plaintiff, 
at  his  own  sale,  purchased  the  interest  of  the  defendant  in 
certain  personal  pi'operty.  There  were  older  writs  in  the 
hands  of  the  officer 'making  the  sale,  and  the  proceeds  were 
exclusively  applied  lo  those  writs.  The  sale  turned  out  ta 
be  void.  The  plaintiff's  judgment  was  subsequently  paid; 
but  he  was  not  repaid  the  purchase  money,  which  had  been 
applied  to  the  extinction  of  elder  claims.  In  these  circum- 
stances, it  was  held  that  his  "claim  is  that  of  a  junior  cred- 
itor, who  has  paid  prior  debts,  and  he  must  be  substituted 
in  the  place  of  the  senior  creditors,  and  subrogated  to  all 
their  rights."-  In  Louisiana  and  Texas,  if  an  execution 
sale  is  void  for  some  irregularity  of  proceding,  but  is  made 
under  a  valid  judgment,  and  the  proceeds  of  the  sale  are 
applied  to  the  satisfaction  of  the  judgment,  the  defendant 
cannot  recover  the  property  from  the  purchaser  without 
first  repaying  the  amount  paid  at  the  sale.^  When  a  void 
sale  is  made  under  proceedings  to  foreclose  a  mortgage^ 
there  seems  to  be  no  doubt  that  the  purchaser  succeeds  to 
the  title  and  rights  of  the  mortgagee,  and  may  enforce  them 
as  the  mortgagee  could  have  done,  but  for  the  sale.* 

§  53.  Right  to  Subrogation  Affirmed  in  Favor  of  Pur- 
chasers at  Probate  Sales. — The  cases  in  which  the  equitable 
rule  of  subrogation  has  been  most  frequently  invoked  with 
success,  have  arisen  under  sales  made  by  administrators^ 
executors  and  guardians.  Thus,  in  North  Carolina,  a  bill 
in  equity  was  tiled,  showing  that  a  sale  of  lands  had  been 
made  to  plaintiff  by  the  defendant,  as  executor  ;  that  in  a 

1  McLaughlin  v.  Daniel,  8  Dana,  183. 

2  Bentley  v.  Long,  1  Strob.  Eq.  .52;  s.  C,  47  Am.  Dec.  523. 

3  Howard  V.  North,  5  Tex.  316;  s.  c,  51  Am.  Dec.  769;  Dufour  v. 
Camfranc,  11  Mart.  610;  s.  c,  13  Am.  Dec.  360.  To  the  same  effect, 
Short  V.  Sears,  93  Ind.  505;  MeGee  v.  Wallis,  57  Miss.  638;  Freeman  on 
Executions,  sec.  352. 

4  Brown  v.  Brown,  73  Iowa,  430;  Brobst  v.  Brock,  10  Wall.  519;  Jack- 
son V.  Bowen,  7  Cow.  13;  Gilbert  v.  Cooley,  Walker's  Ch.  494;  Lilli- 
bridge  v.  Tregent,  30  Mich.  105. 

94 


VOID    JUDICIAL    SALES.  §   53 

trial  at  law  the  sale  had  been  declared  void  for  want  of 
authority  in  the  executor  to  sell ;  that  the  purchase  money 
has  been  paid  to  the  defendant;  that  $108  of  this  money 
remained  in  the  hands  of  the  executor,  and  the  balance 
thereof  had  been  applied  to  the  payment  of  the  debts  of  the 
testator.  The  bill  prayed  that  the  $108  be  refunded,  and 
that  as  to  the  balance  of  the  purchase  money,  the  plaintiff 
might  stand  in  the  place  of  the  creditors  whose  claims  it 
had  satisfied,  and  that  the  land  be  sold  for  the  payment 
thereof.  The  following  is  from  the  opinion  of  the  court: 
"The  claim  of  the  plaintiff's  to  be  substituted  to  the  cred- 
itors, whose  demands  they  have  satisfied,  is  supported,  we 
think,  by  well  settled  principles.  By  the  laws  of  this  State, 
real  as  vvell  as  personal  property  is  liable  for  debts  of  every 
description ;  but  personal  property  is  the  primary  fund  for 
their  satisfaction.  It  is  alleged  that  the  personal  assets 
were  insufficient  for  the  discharge  of  all  the  debts.  Whether 
this  be  the  fact  or  not,  can  only  be  ascertained  by  taking  an 
account  of  the  assets  and  of  the  administration  of  them. 
If,  in  taking  the  account,  the  fact  should  be.  established  as 
alleged,  then  it  follows,  from  the  doctrine  sanctioned  in  the 
cases  of  Williams  v.  Williams,^  and  Saunders  v.  Saunders,"- 
that  the  defendant  Dunn  would  have  a  right  in  a  court 
of  equity  to  be  subrogated  to  those  creditors  who  have 
been  paid  by  his  advances.  As  between  Dunn  and  the 
plaintiff,  if  their  money  were  yet  in  his  hands  he  could 
not  retain  it  with  a  safe  conscience,  and  would  be  obliged 
to  refund  it.  And  it  seems  to  us  clear,  that  if  he  could 
rightfully  reclaim  it  from  his  co-defendants,  he  might  be 
compelled  to  assert  this  right,  or  permit  the  plaintiffs  to 
assert  it  in  his  name,  in  order  that  it  might  be  refunded. 
The  court  would  do  this  upon  the  same  principle  by  which 
the  surety,  on  making  satisfaction  to  the  creditor,  becomes 
entitled  to  demand    every  means    of    enforcing    payment 

'  2Dev.  Eq.  69;  s.  c,  22  Am.  Dec.  729. 
2  2  Dev.  Eq.  262. 

95 


§   53  VOID    JUDICIAL    SALES. 

which  the  creditor  himself  had  against  the  principal  debtor ; 
a  principle  which,  when  traced  to  its  origin,  is  founded  on 
the  plain  obligations  of  humanity,  which  bind  every  one  to 
furnish  to  another  those  aids  to  escape  from  loss  which  he 
can  part  with  without  injury  to  himself.  *  *  *  The 
doctrine  of  substitution,  which  prevails  in  equity,  is  not 
founded  on  contract,  but,  as  we  have  seen,  on  the  principles 
of  natural  justice.  Unquestionably,  the  devisees  are  not  to 
be  injured  by  the  mistake  of  the  executor,  as  to  the  extent 
of  his  power  over  their  land ;  but  that  mistake  should  not 
give  them  unfair  gains.  The  executor  was  not  an  officious 
intermeddler  in  paying  off  the  debts  of  the  testator,  and  his 
erroneous  belief  that  he  could  indemnify  himself  in  a  par- 
ticular way,  should  not  bar  him  from  obtaining  indemnity 
by  legitimate  means.  It  is  not  a  question  here,  whether  a 
mistake  of  law  shall  confer  any  rights,  but  whether  such  a 
mistake  shall  be  visited  with  a  forfeiture  of  rights  wholly 
independent  of  that  mistake."  ^ 

In  the  case  of  Valle  v.  Fleming's  Heirs,"^  a  void  adminis- 
trator's sale  had  been  made,  and  the  proceeds  thereof  applied 
to  the  payment  of  a  mortgage  existing  on  the  lands  sold. 
Ejectment  was  subsequently  brought,  to  which  the  purchas- 
ers filed  an  equitable  defense,  and  prayed  to  be  subrogated 
to  the  rights  of  the  mortgagees.  Judge Napton,  in  deliver- 
ing the  opinion  of  the  court,  referred  to  the  equity  maxims, 
both  of  the  common  and  of  the  civil  law,  as  well  as  to  the 
decisions  of  the  American  courts,  and  concluded  as  follows  : 
"Nothing  could  be  more  unjust,  we  may  repeat,  than  to 
permit  a  person  to  sell  a  tract  of  land  and  take  the  purchase 
money,  and  then,  because  the  sale  happens  to  be  informal 
and  void,  to  allow  him,  or,  which  is  the  same  thing,  his  heir, 
to  recover  back  the  land  and  keep  the  money.  Any  code 
of  law  which  would  tolerate  this  would  seem  to  be  liable  to 

1  Scott  V.  Duun,  1  Dev.  &  Bat.  Eq.  427;  s.  c,  30  Am.  Dec.  174,  and 
note. 

2  29  Mo.  152;  s.  C,  77  Am.  Dec.  557. 

96 


VOID    JUDICIAL    SALES.  §   53 

the  reproach  of  being  a  very  imperfect,  or  ti  very  inequita- 
ble one.  We  think  that,  upon  well  established  principles  of 
equity  law,  the  owner  of  the  land  should,  if  he  wishes  to 
get  it  back,  repay  the  purchase  money  which  he  has  re- 
ceived, or  which  he  will  receive  if  he  gets  the  land.  This 
may  be  done  upon  the  compensation  doctrine  of  courts  of 
equity,  with  which,  as  it  is  settled  on  all  hands,  it  is  not 
inconsistent,  if  we  regard  the  claim  of  the  owner  under  such 
circumstances,  as  the  Eoman  law  treated  it,  as  a  case  of 
fraud  or  ill  faith.  But  whether  this  equity  be  adminis- 
tered under  the  name  of  compensation,  or  by  substituting 
the  purchaser  in  the  place  of  the  creditors  whose  debts  he 
has  paid,  or  by  giving  him  the  benefit  of  the  mortgage 
which  his  money  has  paid  off,  is  not  material.  The  answer 
put  in  by  the  defendants  should  not  have  been  stricken  out, 
and  in  order  that  the  answer  may  be  reinstated,  and  the 
case  may  be  tried  upon  these  equitable  principles,  the  judg- 
ment is  reversed,  and  the  case  will  be  remanded."  ^ 

Nor  is  the  claim  to  subrogation  confined  to  those  cases 
where  a  mortgage  or  some  other  record  lien  has  been  paid 
off  by  the  sale.  The  estates  of  deceased  persons  are  liable 
to  be  sold  for  the  payment  of  the  debts  of  the  decedents, 
whether  such  debts  are  liens  or  not.  If,  by  a  sale  of  the 
lands  of  a  decedent,  his  debts  are  paid,  and  it  turns  out  that 
the  sale  is  void,  the  purchaser  has  the  right  to  be  subrogated 
to  the  claims  which  he  has,  by  his  purchase,  paid  ;  and  he 
has  also  the  right  to  retain  possession  of  the  property  as 
security  for  the  repayment  of  the  sums  to  which  he  is 
entitled. 

1  Valle'8  Heirs  v.  FK-ming's  Heirs,  29  Mo.  1G4;  s.  c,  77  Am.  Dec.  567. 
Judge  Scott  dissented  iu  a  vigorous  and  well  written  opinion,  saying, 
among  other  thiugs:  ''The  defendants  are  volunteers  and  strangers  in 
relation  to  the  plaiutiffs.  No  man  can  make  another  his  dehtur  without 
his  consent.  Nor  can  any  man  pay  a  debt  of  another  without  his  auth.»r- 
ity,  and  claim  it  of  him.  'I'his  is  an  important  principle  necessaiy  to  be 
preserved,  and  it  is  one  which  has  had  its  intlm-iic-  in  aW  cases  in  whi.-h 
it  has  bt'e:i  involed." 

117 


§   53  VOID    JUDICIAL    SALES. 

The  case  of  Blodgett  v.  Hitt/  discusses  more  thoroughly 
than  any  other  with  which  we  are  familiar  the  rights  of 
purchasers  under  void  probate  sales.  We  copy  so  much  of 
the  opinion  of  the  court  as  is  devoted  to  this  subject :  ' '  The 
evidence  on  this  subject  is,  that  the  defendant  bid  off  the 
land  at  the  administrator's  sale  for  $365;  that  out  of  this 
sum  he  paid  the  Boyd  mortgage,  amounting  to  nearly  $250, 
and  that  he  paid  the  balance  of  the  purchase  money  to  the 
administrator.  The  whole  of  the  purchase  money  was 
applied  to  the  payment  of  the  mortgage,  of  other  debts 
against  the  estate,  and  of  the  expenses  of  administration. 
The  land  in  question  stood  chargeable  with  the  payment  of 
such  mortgage  debts  and  expenses.  The  payments  made  by 
the  defendant,  on  account  of  his  purchase,  enured  to  the 
benefit  of  the  owners  of  the  land.  There  is  no  manner  of 
doubt  but  the  defendant  purchased  the  land,  and  paid  his 
money  thereof,  in  perfectly  good  faith,  supposing  that  he 
was  obtaining  the  whole  title  thereto;  and  there  is  no  pre- 
tense that  he  had  any  actual  notice  of  the  defect  in  the  pro- 
ceedings before  the  sale,  which  invalidates  his  title.  The 
question  then  is,  whether,  under  such  circumstances,  the  de- 
fendant is  entitled  to  be  repaid  the  money  which  he  has  paid 
in  good  faith  to  relieve  the  land  from  incumbrances,  before 
he  can  be  turned  out  of  possession  thereof.  Suppose,  for 
illustration,  that  the  liabilities  against  the  estate  of  Pearley 
P.  Blodgett,  after  the  personal  estate  was  exhausted,  were 
just  $365,  for  the  payment  of  which  the  land,  which  the 
administrator  attempted  to  convey  to  the  defendant,  was 
chargeable.  The  interest  of  the  heirs  of  Blodgett  in  the 
land  was  precisely  that  sum  less  than  a  full  and  perfect 
title  thereto.  That  is  to  say,  the  creditors  of  the  intestate 
owned  an  equitable  interest  therein  to  the  amount  of  $365, 
and  the  heirs  were  the  owners  of  the  residue.  Now,  when 
the  defendant,  supposing  in  good  faith  that  he  was  thereby 
obtaining  a  title  to  the  lands,  paid  those   debts  and  took  a 

1  29  Wis.  182. 

98 


VOID    JUDICIAL    SALES.  §   53 

conveyance  of  the  land  from  the  administrator,  and  when 
it  turns  out  that,  by  reason  of  the  failure  of  the  administra- 
tor to  perform  and  fulfill  an  essential  prerequisite  to  a  valid 
sale,  the  defendant  gets  no  title  by  such  conve3'ance,  and 
the  heirs  recover  the  land,  it  must  be  admitted  that  there 
is  no  justice  in  giving  the  land  to  heirs,  cleared  of  the  in- 
cumbrances which  the  defendant  has  paid,  without  requiring 
them  to  repay  the  sums  thus  paid  by  him  for  their  benefit. 
Otherwise,  the  heirs  would  recover  a  greater  interest  in  the 
land  than  they  inherited,  by  the  sum  of  $365,  and  the  de- 
fendant would  be  out  of  pocket  to  that  amount,  paid  by 
him  for  their  benefit.  The  fact  that  the  purchase  money, 
paid  by  the  defendant,  only  cancelled  a  small  percentage 
of  the  indebtedness  against  the  estate,  does  not  change  the 
principle..  But  the  question  is  not  alone — What  is  the  natural 
and  inherent  justice  of  the  case?  but  it  is — are  the  principles 
and  rules  of  equity  jurisprudence,  as  recognized  and 
enforced  by  courts  of  equity,  sufficiently  broad  and  com- 
prehensive to  reach  the  case  and  compel  the  heirs  to  repay 
the  sums  which  the  defendant  has  thus  paid  for  their  benefit, 
before  they  will  be  permitted  to  take  possession  of  the  land 
in  controversy?  We  are  of  the  opinion  that  this  latter 
question  must  be  answered  in  the  affirmative,  both  upon 
principle  and  by  authority.  A  brief  reference  will  be 
made  to  a  few  of  the  leading  cases,  wherein  it  has  been  so 
held: 

"  Hudgin  V.  Hudgin,^  was  a  case  where  a  person,  by  will, 
charged  his  lands  with  the  payment  of  his  debts.  After  his 
death,  a  creditor  procured  an  order  from  the  proper  court 
for  the  sale  of  some  portion  of  the  lands  thus  made  charge- 
able with  the  debts  of  the  testator.  The  lands  were  sold, 
and  the  proceeds  api)lied  to  the  payment  of  such  debts.  The 
sale  and  conveyance,  executed  pursuant  thereto,  were  sub- 
sequently held  void,  and,  in  ejectment  brought  by  some  of 
the  devisees  of  the  land  against  the  purchaser  at  such  sale, 

»  6  Grat.  320;  S.  c,  52  Am.  Dec.  124. 

99 


§    53  VOID    JUDICIAL    SALES. 

or  the  person  claiming  under  him,  the  devisee  recovered 
judgment.  The  defendant  in  the  ejectment,  filed  his  bill  in 
equity  and  obtained  an  injunction,  restraining  proceedings 
upon  such  judgment,  and,  upon  proof  of  these  facts,  the 
court  of  appeals  of  Virginia  directed  a  decree  declaring 
the  purchase  money,  so  paid  by  the  complainant,  or  his 
grantor,  on  such  void  sale,  and  the  interest  thereon,  after 
deducting  therefrom  the  rents  and  profits  of  the  land 
while  occupied  by  the  purchaser  or  his  grantee  (exclusive 
of  improvements  made  by  them  respectively),  to  be  a 
charge  on  the  land,  and  providing  that,  unless  the  same 
should  be  paid  by  the  devisees  within  a  reasonable  time,  the 
land  be  sold  for  the  satisfaction  thereof,  on  terms  to  be 
prescribed  for  the  purpose.  This  case  is  decided  upon  the 
principles  that  the  purchaser,  whose  money  has  paid  the 
incumbrances  upon  the  land,  has  the  right  to  be  substituted 
to  the  rights  of  the  creditor  whose  debt  be  has  paid  ;  and, 
because  equity  will  not  permit  such  creditor  or  incum- 
brancer, lawfully  in  possession,  to  be  disturbed  therein 
until  his  debt  or  incumbrance  is  fully  satisfied,  it  will  not 
permit  such  purchaser,  who  has  paid  the  incumbance  in 
good  faith,  and  is  thereby  subrogated  to  the  rights  of  the 
creditor,  to  be  dispossessed  until  he  is  reimbursed  for  the 
moneys  so  paid  by  him. 

"Valle's  Heirs  v.  Fleming's  Heirs, ^  is  to  the  same  effect. 
This  is  a  very  important  and  interesting  case,  and  will  jus- 
tify a  somewhat  extended  notice.  The  action  was  in  the 
nature  of  ejectment.  The  plaintiffs  claimed,  as  heirs  of 
Valle,  who  died,  seized  of  the  lands  in  controversy  in  the 
action.  The  defendants  were  in  possession  under  certain 
conveyances,  executed  to  their  ancestor  and  his  grantors  by 
the  administrators  of  the  estate  of  Valle,  pursuant  to  a 
sale  of  the  land  under  an  order  of  the  proper  court.  In  a 
former  litigation  these  conveyances  had  been  adjudged  to 
be  null  and  void   by  the  Supreme  Court  of  Missouri.     In 

129  Mo.  152;   s.  c,  77  Am.  Dec.  557. 

100 


VOID    JUDICIAL    SALES.  §   53 

their  answer  the  defendunts  alleged,  as  an  equitable  defense 
and  counter-claim,  that  their  ancestor  and  his  grantors  pur- 
chased the  lands  in  good  faith,  and  paid   therefor  $50,000, 
which  moneys  the   administrators  applied   to  the  payment 
and  satisfaction  of  a  mortgage  upon   said   lands,  and,  per- 
haps, other  lauds  of  which  Valle  died  seized.     The  defend- 
ants claimed  that,  notwithstanding  the  apparent  and   tech- 
nical payment  and  extinguishment  of  such  mortgage,  equity 
would,  under  the   circumstances,  treat  it  as  still  subsisting 
and  unsatisfied,  for  the  protection  of  the  purchasers  from 
the  administrators,  or  their  grantees,  and  would  subrogate 
such  purchasers  or  grantees  to  all  of  the  rights  of  the  mort- 
gagee, treating  them  as  assignees  and  purchasers  of   the 
mort^ao-e,  for  a  valuable  consideration  by  them  paid.  They 
also  claimed  that  they  were,  in  fact  and  in  equity,  in  pos- 
session of  the  land  in  controversy  as  assigns  of    said   mort- 
gage, and  fully  entitled  to  set  up  the  same  against  any  per- 
son attacking  their  rights  or  possession  thereto.     The  court 
below  rejected  these  views  of  the  case,  and  struck  out  from 
the  answer  such  equitable  defense   and  counter-claim ;   but 
the  supreme  court  reversed  the  judgment  below  for  that 
reason,   and  in  a   very   able  opinion    by  Judge  Napton,  a 
majority  of  the  court  fully  sustain  the  theory  of  the  defend- 
ants, and  they  were  entitled  to  the  equitable  protection  of 
the  court  as   mortgagees   in    possession   under  an    unpaid 
mortgage,  and  that  their  possession  could  not  be  disturbed 
until  an  account  should   be  taken   and  the  sura   ascertained 
to  be  equitably  due  to  them  on  the  mortgage  fully  paid.   In 
that  case  Judge  Scott,  delivered  a  dissenting  opinion,  wherein 
he  claims  that  the   views  of  the   majority  of  the  court  arc 
unsustaincd  by  the  cases;   that  the   decision   creates  a   new 
equity,  or  rather  injects  a  new   principle   into  the   e<iuily 
jurisprudence  of  the  country  ;   and,  further,  that  the  defend- 
ant's  ancestor  and    his    grantors,  who    paid    their    money 
under  a  void  sale  and  conveyance,  were  mere   volunteers; 
and,  because  a  man  may  not  pay  the  debt  of  another  witli- 

101 


§   53  VOID    JUDICIAL    SALES. 

out  his  authority  and  claim  it  of  him,  the  learned    judge 
concludes  that  the   defendants  (who  had  succeeded  to  all  of 
the  rights  of  the  original  purchasers)  could  not  be  subro- 
gated to  the  rights  of  the  mortgagee,  and   recover  of  the 
heirs,  or  out  of  the  land,  the  money  which  was  thus  volun- 
tarily paid  on  a  void  conveyance.     It  is  believed  that  both 
these  positions  are  untenable.     That  this  is  no  new  equity 
— one  first  recognized  and   asserted  in  that  case — is  abund- 
antly shown  by  a  reference  to  the  cases  cited  in  the  major- 
ity opinion.     Some  of  those  cases  will  be  hereinafter  men- 
tioned.    Again,   the   lands  having    been    purchase  of   the 
administrator  in  good  faith,  and  at  a  sale  which  had  been 
ordered  to  be  made  by  the  proper  court,  and  the  purchasers 
having  paid    a  valuable  consideration  for  the  land,  in  the 
belief  that  they  were  obtaining  a  good  title  thereto,  it  can- 
not be  said,  in  any  reasonable  or  just  sense,  that  they  were 
mere  volunteers.     On  the  contrary,  they  paid  their  money 
at  the  request  and  by   the  procurement  of  the  administra- 
tors ;  and  inasmuch  as  the  administrators  were  charged  by 
law  with  the  duty  of  converting  the  assets  and  paying  the 
debt,  it  may  well  be  held  that  they  were  the  representatives 
of  the  heirs,  to  the  extent  that  the    latter    should    be    held 
bound  by  such  request,  and  should  not  be   heard   to    allege 
that  the  purchasers,  whose  money  went  to   pay  the  incum- 
brance upon  the  land,  were   mere   volunteers.     The  judge 
also  speaks  of  the  distinction  between    trusts  and  powers, 
and  says  that  because  the  administrators   have  nothing  but 
a    mere    power,  without  an    interest,   the    land    cannot    be 
affected  by  their  conversance   thereof,  unless   the  power  is 
executed  pursuant  to  the  terms  of  the  statute  by  which  it  is 
conferred.     In  this  the  learned  judge  is  doubtless  correct, 
as  he  would  have  been  had  he  said  further,  that  where,  as 
in  that  case,  a  power  is  created  by  law,  equity  will  not   re- 
lieve against  a  defective  execution  of  it.     But  the  result  of 
these  principles  is  not  that  a  purchaser  in  good  faith  at  an 
administrator's  sale    is   not   entitled,  in   a  case    where  the 

102 


VOID    JUDICIAL    SALES.  §   53 

conveyance  to  him  has  been  adjudged  void,  to  be  repaid 
by  the  heir,  or  out  of  the  land,  the  money  jniid  by  him  for 
such  void  conveyance,  and  applied  in  payment  and  satisfac- 
tion of  incumbrances  upon  the  estate,  but  only  that  the 
power  having  been  defectivel}'  executed,  the  conveyance  is 
void,  and  a  court  of  equity  has  no  jurisdiction  or  authority 
to  heal  the  defect  and  make  it  valid. 

"The  foregoing  case  was  decided  mainly  upon  the  author- 
it}^  of  the  case  of  Bright  V.  Boyd.'  This  is,  perhaps,  the 
leading  case  on  the  question  under  considci-ation.  Boyd, 
the  defendant,  had  recovered  judgment,  in  an  action  of 
ejectment,  for  certain  premises  in  the  possession  of  Bright, 
the  complainant;  whereupon  Bright  filed  his  bill  in  equity 
against  Boyd,  alleging  that  he  was  in  possession  of  the 
premises  in  controversy,  by  intermediate  conveyances  from 
the  administrator,  with  the  will  annexed  of  the  estate  of 
John  P.  Boyd,  the  father  of  defendant,  but  that  the  title 
under  the  administrator's  deed  had  failed,  or  rather  that 
the  same  convej'ed  no  title  by  reason  of  the  failure  of  the 
administrator  to  comply  with  certain  requirements  of  the 
law,  which  were  held  to  be  essential  to  the  validity  of  the 
sale  ;  and  that  the  complainant,  or  those  under  whom  he 
claimed  in  good  faith,  and  believing  that  the  deed  from 
the  administrator  conveyed  a  good  title  to  the  premises, 
had  made  valuable  and  permanent  improvements  thereon. 
The  object  of  the  bill  was  to  make  the  value  of  such 
improvements  a  charge  upon,  and  to  enforce  payment 
therefor  out  of  the  premises  which  the  defendant  had 
recovered  in  the  ejectment  suit.  The  defendant,  Boyd, 
made  title  to  the  land  as  devised  under  the  will  of  his  father. 
On  proof  of  these  allegations,  Justice  Story,  before 
whom  the  cause  was  heard,  after  great  deliberation  and 
research,  gave  the  complainant  the  relief  prayed  in  the  bill, 
and,  in  the  absence  of  any  statutory  provision  on  the  sub- 
ject, held  the  broad  doctrine  that,  'nhonajidc  purchaser  foi- 

11  Story,  478,  and  2  Tl).  60.5. 

103  («) 


§   53  VOID    JUDICIAL    SALES. 

a  valuable  consideration,  without  notice  of  any  defect  in 
his  title,  who  makes  improvements  and  meliorations  upon 
the  estate,  has  a  lien  or  charge  thereupon  for  the  increased 
value,  which  is  thereby  (riven  to  the  estate  beyond  its  value 
without  them,  and  a  court  of  equity  will  enforce  the  lien  or 
charge  ao^ainst  the  true  owner,  who  recovers  the  estate  in  a 
suit  at  hiw  against  the  purchaser.' 

"The  principle  there  asserted  is  precisely  the  same  as 
that  involved  in  the  question  under  consideration  in  this 
case.  In  both  cases,  if  the  land  is  held  chargeable,  it  is 
because  the  money  of  the  purchaser  under  the  void  sale  has 
been  paid  in  good  faith,  and  expended  to  increase  the  value 
of  the  estate.  It  is  quite  immaterial  whether  this  was  done 
by  paying  off  incumbrances,  or  by  making  permanent  and 
valuable  improvements.  In  either  case,  the  value  of  the 
inheritance  is  increased  by  the  expenditure,  and,  as  already 
observed,  the  plainest  principle  of  justice  demand  that  the 
heir  or  devisee  should  repay  the  money  thus  innocently 
expended  for  his  benefit,  to  the  extent  that  he  has  been 
benefited  thereby.  The  opinion  of  Judge  Story,  in  Bright 
V.  Boyd,  is  exceedingly  learned  and  able,  and  will  well  repay 
careful  perusal  and  study.  He  traces  the  principle  which 
he  applied  there  to  the  Roman  law,  and  shows  that  it  has 
been  adopted  into  the  laws  of  all  modern  nations  which 
derive  their  jurisprudence  from  the  Roman  law,  and 
demonstrates,  by  reference  to  the  writings  of  Cujacius, 
Bothier,  Grotius,  Bell,  Puffendorf,  Rutherforth,  and  others, 
and  by  arguments  which  seem  conclusive  of  the  question, 
that  'such  principle  has  the  highest  and  most  persuasive 
equity,  as  well  as  common  sense  and  common  justice,  for 
its  foundation.'  We  are  not  aware  that  the  anthority  of 
that  case  has  ever  been  shaken,  or  its  correctness  ever  suc- 
cessfully assailed. 

"Before  dismissing  the  case  of  Bright  v.  Boyd  from  our 
consideration,  I  may  be  permitted  to  transcribe  a  passage 
from  the  opinion,  to  show  how  identical  in. principle  that 

104 


VOID    JUDICIAL    SALES.  §   53 

case  is  with  the  present  one,  and  also  to  show  the  views  of 
the  eminent  jurist  who  wrote  the  opinion  upon  the  precise 
question  involved  in  this  case.  Judge  Story  there  says 
that  'it  cannot  be  overlooked  that  the  lands  of  the  testator 
now  in  controversy  were  sold  for  the  payment  of  his  just 
debts,  under  the  authority  of  law,  although  the  authority 
was  not  regularly  executed  by  the  administrator  in  his 
mode  of  sale,  by  a  non-compliance  with  one  of  the  prereq- 
uisites. It  was  not,  therefore,  in  a  just  sense,  a  tortious 
sale;  and  the  proceeds  thereof,  paid  by  the  purchaser,  have 
gone  to  discharge  the  debts  of  the  testator,  and,  so  far,  the 
lands  in  the  hands  of  the  defendant  (Boyd)  have  been 
relieved  from  a  charge  to  which  they  were  liable  by  law. 
So  that  he  is  now  enjoying  the  lands  free  from  a  charge 
which,  in  conscience  and  equity,  he,  and  he  only,  and  not 
the  purchaser  ought  to  bear.  To  the  extent  of  the 
charge  from  which  he  has  been  thus  relieved  by 
the  purchaser,  it  seems  to  me  that  plaintiff,  claiming  under 
the  purchaser,  is  entitled  to  reimbursement,  in  order  to 
avoid  circuity  of  action,  to  get  back  the  money  from  the 
administrator,  and  thus  subject  the  lands  to  a  new  sale,  or, 
at  least,  in  his  favor,  in  equity  to  the  old  charge.  I  con- 
fess myself  to  be  unwilling  to  resort  to  such  a  circuity  in 
order  to  do  justice,  where,  upon  the  principles  of  equity, 
the  merits  of  the  case  can  be  reached  by  affecting  the 
lands  directly  with  a  charge  to  which  they  are  ex  ceqiio  tl 
bono  in  the  hands  of  the  present  defendant,  clearly   liable.' 

"After  what  has  been  already  said,  concerning  the  rule 
of  the  civil  law  on  this  subject,  we  should  expect  to  find 
the  courts  of  Louisiana  asserting  and  enforcing  that  rule. 
Accordingly,  we  find,  in  Dufour  v.  Camgranc,^  the  foUow- 
ino-  lansuaore  :  'It  has  been  proved  that  the  proceeds  aris- 
ing  from  the  sale  of  the  slaves  were  applied  to  the  dis- 
charge of  the   judgment    debts    of   the    plantiff,    and    tlm 


1  1  Story,  193. 

m  Martin.  007  (2  Cond.  T.a.  Reports,  -iiU) ;  s.   c  i:i   Am.  Dec.  iiGI. 

105 


§   53  VOID    JUDICIAL    SALES. 

court  is  of  opinion  that  he  cannot  recover  in  the  suit 
until  he  repay  that  money.  *  *  *  Nothing  could  be 
more  unjust  than  to  permit  a  debtor  to  recover  back  his 
property  because  the  sale  was  irregular,  and  yet  allow  him 
to  profit  by  that  irregular  sale  to  pay  his  debts.'  It  will 
be  readily  inferred  from  the  foregoing  extracts,  that  the 
action  was  brought  to  recover  certain  slaves,  which  the 
defendant  had  purchased  at  a  sheriff's  sale  upon  an  execu- 
tion, which  sale,  it  was  afterwards  held,  was  void  and 
transferred  no  title  to  the  slaves  to  the  purchaser,  but  the 
proceeds  of  the  sale  went  to  pay  judgment  debts  against 
the  plaintiff.  *  *  *  We  hold,  therefore,  that  the  whole 
purchase  money,  paid  by  the  defendant  for  the  land  in  con- 
troversy, and  the  interest  thereon,  less  the  mesne  profits  of 
the  land  (exclusive  of  the  improvements  placed  thereon  by 
him)  during  his  occupancy  thereof,  is  a  lien  and  charge 
upon  the  land,  and  that  the  plaintiffs  cannot  have  restitu- 
tion of  the  land  claimed  by  them  until  the  amount  of  such 
lien  and  charge  is  paid."  ^ 

The  more  recent  decisions  have  been  in   favor  of  recog- 

1  Blodgett  V.  Hitt,  29  Wis.  182.  The  following  cases  are  in  harmony 
with  the  one  just  cited:  Bright  v.  Boyd,  2  Story  C.  C.  605:  Mohr  v. 
Tulip,  40  Wis.  66;  Grant  v.  Loyd,  12  S.  &  M.  191 ;  Levy  v.  Riley,  4  Org. 
392;  Short  v.  Porter,  44  Miss.  533;  Williamson  v.  Williamson.  3  S.  &  M. 
715;  s.  c,  41  Am.  Dec.  636;  Douglass  v.  Bennett,  21  Miss.  680;  Hudgin 
V.  Hudgin,  6  Gratt.  320;  s.  c,  52  Am.  Dec.  124;  Winslow  v.  Crowell, 
32  Wis.  639;  Dunbar  v.  Creditors,  2  La.  An.  727:  Stockton  v.  Downey, 
6  La.  An.  581 ;  Ragland  v.  Green,  14  S.  &  M.  194.  "If  the  sale  be  void 
or  voidable,  the  lien  of  the  administrator  continues;  and  it  would  seem 
equitable  that  the  purchaser,  who  has  paid  the  debts  of  the  estate,  should 
have  a  lien  on  the  estate  for  his  purshase  money."  Haynes  v.  Meelis,  10 
Cal.  110;  s.  c,  70  Am.  Dec.  703.  A  purchaser  has  no  claim  against  the 
heirs  nor  their  estate  for  purchase  money  which  he  fails  to  show  has 
been  applied  for  their  benefit.  Jayne  v.  Boisgerard,  39  Miss.  796.  In 
Illinois,  if  application  is  made  to  a  court  of  equity  to  set  aside  a  sale,  the 
relief  will  not  be  granted,  unless  the  complainants  do  equity  on  their 
part,  and  refund  so  much  of  the  purchase  money  as  may  have  come  into 
their  possession.  Chambers  v.  Jones,  72  111.  275.  If  the  money  paid  by 
the  purchaser  has  been  applied  to  the  extinguishment  of  liens  on  the 
property  purchased,  he  is  entitled  to  be  subrogated  to  such  liens.  Kin- 
ney V.  Knoebel,  51  111.  112.    But  where,  in  a  probate  sale,  the  money  is 

10<5 


VOID    JUDICIAL    SALES.  §   54 

nizing  and  enforcing  the  claims  of  purchasers  at  void  sales, 
by  whose  purchase  moneys  have  been  realized,  and  when 
realized  have  been  ai)plied  in  payment  of  liens  upon  the 
property  purchased,  or  of  claims  which,  though  not  secured 
by  any  specific  lien,  were  enforceable  against  the  assets  of 
the  estate,  and  for  the  payment  of  which  the  lands  in  con- 
troversy might  have  been  sold.  The  heirs  will  not  be 
permitted  to  recover  the  property  unless  they  reimburse 
the  purchaser  for  the  moneys  paid  by  him,  and  which 
have  benefited  them  b}'  discharging  claims  against  the 
estate.^ 

§  54.  Right  to  Subrogation,  When  Purchaser  is  Guilty 
of  Fraud. — It  is  a  familiar  principle,  that  whoever  seeks 
equity  must  come  with  clean  hands.  Nearly  all  the  cases 
in  which  relief  has  been  granted  to  purchasers  at  void  sales, 
have  proceeded  upon  the  express  ground  that  the  purchaser 
had  acted  in  good  faith,  and  in  ignorance  of  the  irregular- 
ity by  which  his  title  was  impaired.  Certainly  in  all  such 
cases  the  purchaser's  good  faith  ought  to  be  regarded  as 
material.  In  Pennsylvania  and  Texas,  if  a  purchaser  is 
guilty  of  a  fraud,  on  account  of  which  his  purchase  is  ad- 
judged void,  he  cannot  reclaim  his   purchase  money.     He, 

paid  to  discharge  debts  not  secured  b\-  any  specific  lien,  the  purchaser 
is  without  redress.     Bishop  v.  O'Conner,  .")!  111.  437. 

iSch:efer  v.  Causey,  8  Mo.  App.  142;  s.  C,  7G  Mo.  365;  Jones 
V.  Manly,  58  Mo.  559;  Evans  v.  Snyder,  64  Mo.  517;  Sharky  v.  Bauk- 
ston,  30  La.  An.  891 ;  Hatcher  v.  Briggs,  6  Oreg.  31 ;  Sands  v.  Lynhani,  27 
Gratt.  291;  s.  C,  21  Am.  Rep.  348;  Snider  v.  Coleman,  72  Mo.  568; 
Davis  v.  Gaines,  104  U.  S.  386;  Barrelli  v.  Ganche,  24  La.  An.  324; 
Gaines  v.  Kennedy,  53  Miss.  103;  Hill  v.  Billingsly,  53  Miss. Ill;  McGee 
V.  AVallis,  57  Miss.  638;  Jouet  v.  Mortimer,  29  La.  An.  207;  Davidson  v. 
Davidson,  28  La.  An.  209;  Bland  v.  Bowel,  53  Ala.  152;  (ioodman  v. 
Winter,  04  Ala.  410;  Robertson  v.  Bradford,  73  Ala.  116;  Ellis  v.  Ellis, 
84  Ala.  348;  Frost  V.  Atwood,  41  N.  W.  Rep.  96  (Mich.);  Duncan  v. 
Garney,  108  Ind.  579;  Wilson  v.  Holt,  83  Ala.  528;  3  Am.  St.  Rep. 
768;  Stults  v.  Brown,  112  lad,  370;  2  Am.  St.  Rep.  190 :  Perry  v. 
Adams.  98  X.  C.  107;  2  Am.  St.  Rep.  326;  Pool  v.  Ellis,  61  Miss.  555; 
Davis  V.  Reaves,  21  Cent.  L.  J.  368;  Catbcart  v.  Sugenheincr.  18  S.  C, 
123;  Levy  v.  Martin,  4S  Wis  198;  Crippen  v.  Chappel,  35  Kan.  495;  .')7 
Am.  Rep.  187. 

107 


§   55  VOID    JUDICIAL    SALES. 

in  effect,  forfeits  it  to  those  whom  he  sought  to  defraud,  for 
they  may  retain  the  money  and  recover  the  estate.^  In 
Mississippi,  on  the  other  hand,  a  fraudulent  purchaser  may 
assert  the  same  equities  as  the  one  who  has  acted  in  good 
faith  .2 

§  55.  Purchaser's  Right  to  the  Aid  of  Equity  in  Sup- 
plying-Omissions  and  Mistakes. — In  every  case  where  a 
purchaser  has,  in  good  faith,  made  and  complied  with  his 
bid,  his  equities  are  of  a  very  persuasive  character,  and 
usually  appeal  to  our  sense  of  justice  more  strongly  than 
the  equities  of  him  who  seeks  to  avoid  the  sale  without 
placing  the  purchaser  in  statu  quo.  In  many  cases,  it  is 
apparent  that  the  vice  which  renders  the  sale  a  nullity  has 
not,  in  fact,  operated  to  the  detriment  of  him  whose  prop- 
erty was  sold.  All  the  parties  may  have  supposed  the  pro- 
ceedings to  be  regular;  the  bidding  may  have  been  spirited; 
the  price  realized  may  have  equalled,  or,  perhaps,  exceeded 
the  value  of  the  property ;  the  proceeds  of  the  sale  may 
have  all  been  applied  in  the  manner  directed  by  law,  and 
still  some  act  or  omission,  unnoticed  at  the  time,  may 
render  the  purchaser's  title  utterly  void  at  law.  In  such  a 
case,  our  sense  of  justice  revolts  at  the  thought  that  he  may 
be  without  redress.  We  naturally  expect  that  equity  will 
interpose  to  supply  the  omission,  or  that,  on  such  terms  as 
may  be  just,  it  will  enjoin  the  parties  in  interest  from 
availing  themselves  of  an  error  which  clearly  has  not 
impaired  their  rights.  But,  on  seeking  relief,  we  are  at 
once  confronted  with  the  reminder  that,  "in  cases  of  defect- 
ive execution  of  powers,  we  are  carefully  to  distinguish 
between  powers  which  are  created  by  private  parties  and 
those  which  are  specially  created  by  statute ;  as,  for  instance, 
powers  of  tenants  in  tail  to  make  leases.  The  latter  are 
construed  with  more  strictness,  and,  whatever  formalities 

1  McCaskey  v.  Graff,  23  Pa.  St.  321;  s.  C,  62  Am.  Dec.  336;  Gilbert  v. 
Hoffman  2  Watts.  66;  s.  c,  26  Am.  Dec.  103;  Jackson  v.  Summerville, 
13  Pa.  St.  359;  Elam  v.  Donald,  58  Tex.  316. 

2  Grant  V.  Loyd,  12  S.  &  M.  191. 

108 


VOID    JUDICIAL    SALES.  §   55 

are  required  b}'  the  statute,  must  be  punctually  complied 
with,  otherwise  the  defect  caunot  be  helped,  or,  at  least, 
may  not,  perhaps,  be  helped  in  equity,  for  courts  of  equity 
cannot  dispense  with  the  regulations  prescribed  by  statute, 
at  least  where  they  constitute  the  apparent  policy  and 
object  of  the  statute."  ^  Perhaps  this  language,  owing  to 
the  author's  timidity  of  expression,  may  not  necessarily 
dispose  of  the  purchaser's  claim  for  relief.  The  other 
authorities  are  more  decisive,  especially  with  regard  to 
execution,  judicial  and  probate  sales.  Thus,  in  a  case 
decided  by  Judge  Story,  it  appeared  that  an  administrator's 
sale  had  been  regularly  licensed,  and  that  all  the  require- 
ments of  the  statute  had  been  respected,  save  that  requir- 
ing a  bond  to  be  given  and  approved  prior  to  the  sale.  The 
judge,  in  his  opinion,  said:  "Upon  this  case,  coming  out 
on  the  trial  of  the  action  at  law  (a  writ  of  entry),  the  court 
held  that  the  giving  of  the  bond  was,  by  law,  an  essential 
])rerequisite  to  the  sale ;  and,  it  not  having  been  complied 
with,  the  sale  was  consequently  invalid  and  passed  no  title  to 
the  purchaser.  It  is  now  argued  that  however  correct  this 
doctrine  may  be  at  law,  yet,  in  a  court  of  equity,  the  omis- 
sion to  give  the  bond,  within  a  stipulated  time,  ought  not  to 
be  held  a  fatal  defect,  but  it  should  be  treated  as  a  mis- 
take, or  inadvertence,  or  accident  properly  remediable  in 
a  court  of  equity.  We  do  not  think  so.  The  mistake  was 
a  voluntary  omission,  or  neglect  of  duty,  and  in  no  just 
sense  an  accident.  But,  if  it  were  otherwise,  it  would  be 
difficult,  in  the  present  case,  to  sustain  the  argument.  This 
is  not  the  case  of  the  defective  execution  of  a  power  created 
by  the  testator  himself,  but  of  a  power,  created  and  regu- 
lated by  statutes.  Now  it  its  a  well  settled  doctrine  that, 
although  courts  of  equity  may  relieve  against  the  defective 
execution  of  a  power  created  by  a  party,  yet  they  cannot 

1  Story's  Eq.  Jur.  sec.  96.  See  lb.,  sec.  177;  1  I.ead.  Cas.  in  Eq.  4th 
Am.  E(l.j379;  Freeman  on  Executions,  sec.  332;  Tiernaii  v.  Heain,  2  Ohio, 
465;  s.  c,  1.0  Am.  Dec.  557;  Ware  v.  Johnson,  55  Mo.  500;  Moreau  v. 
Branham,  27  Mo.  351;   McBryde  v.  Wilkinson,  2!»  Ala.  tit)2. 

101) 


§   55  VOID    JUDICIAL    SALES. 

relieve  against  the  defective  execution  of  a  power  created 
by  law,  or  dispense  with  any  of  the  formalities  required 
thereby  for  its  due  execution  ;  for,  otherwise,  the  whole  pol- 
icy of  the  legislative  enactments  might  be  overturned. 
There  may,  perhaps,  be  exceptions  to  this  rule,  but  if  there 
be  the  present  case  does  not  present  any  circumstances 
which  ought  to  take  it  out  of  the  general  rule.  Therefore, 
it  seems  to  us  that  the  non-compliance  with  the  statute  pre- 
requisites, in  the  present  case,  is  equally  fatal  in  equity  as 
it  is  in  law."i 

In  Illinois,  certain  heirs  recovered  a  judgment  in  eject- 
ment for  lands  purchased  at  a  guardian's  sale.  The  defect 
in  the  purchaser's  title  was  the  omission  of  the  guardian  to 
report  the  proceedings  under  the  order  of  sale.  The  pur- 
chaser then  filed  a  bill  to  enjoin  the  execution  of  the  judg- 
ment in  ejectment,  and  for  general  relief.  The  supreme 
court  decided  that  the  bill  must  be  dismissed.  Caton,  J., 
in  delivering  the  opinion  of  the  court,  considered  and  ap- 
proved the  views  expressed  by  Judge  Story  in  his  Commen- 
taries, and  also  in  Bright  v.  Boyd,  both  of  which  have  been 
quoted  in  this  section.  He  further  said:  "If  chancery  may 
interfere  and  dispense  with  one  of  the  requirements  of  the 
statute  it  may  with  another,  and  thus  in  its  unlimited  dis- 
cretion it  may  fritter  away  the  whole  statute.  It  is  seri- 
ously claimed  that,  because  the  purchaser  purchased  in  good 
faith,  and  paid  the  full  value  of  the  property  to  the  guardian 
of  the  owners,  thereby  an  equity  is  raised  in  his  favor  and 
against  them,  which  the  court  will  enforce.  Equities  do 
not  arise  upon  statutory  acts  without  the  volition  of  those 
against  whom  the  equity  is  charged.  Suppose  this  guard- 
ian, seeing  that  a  case  existed  which  would  require  the  cir- 
cuit court  to  order  a  sale  of  the  infant's  estate,  and,  in 
ignorance  of  the  law,  but  in  all  honesty,  had  sold  the  estate 
for  its  full  value,  and  without  an  order  of  court,  to  a  pur- 
chaser who,  in  good  faith,  supposed  he  was  getting  a   good 

1  Bright  V.  Boyd,  1  Story  C.  C.  486. 

110 


VOID    JUDICIAL    SALES  §   55 

title,  in  that  case  the  purchaser's  equit}'  would  be  just  as 
strong  as  in  the  equity  in  this  case  ;  and,  should  we  now 
hold  that  the  purchaser  here  acquired  an  equitable  title, 
which  should  be  enforced  against  the  heir,  it  would  be 
equally  our  duty,  when  the  supposed  case  arises,  to  compel 
a  conveyance  to  the  purchaser,  and  then  the  entire  statute 
would  be  gone.  But  the  truth  is,  the  purchaser  at  these 
statutory  sales  gets  no  imperfect  equitable  title  which  may 
be  perfected  in  chanceiy;  he  gets  the  whole  title  which  the 
infant  had,  or  he  gets  no  title  whatever."^ 

As  equity  will  not  supply  an  act   omitted  inadvertently 
or  otherwise,  so  it  will  not  correct  a  mere  mistake,  nor  re- 
lieve the  purchaser  from    the  consequences  of   a   mistake. 
Thus,  if  by  mistake  part  of  a  tract  intended  to  be  embraced 
in  an  order  of  sale  is  omitted  therefrom,  or  if  a  tract  alto- 
gether different  from  the  one  intended,  is  in.serted  therein, 
and  the  error  passes  unnoticed  until  after  the  sale,  equity 
cannot  relieve  the  purchaser,  nor  give  him  the  tract   which 
he  supposed  he  was  buying,  and  which  the  administrator  or 
other  officer  intended  to  sell.-     In  Iowa,  this  rule  seems  to 
be  ignored.     A  judgment  was  entered  in  that  State  for  the 
sale  of  a  part  of  several  lots  of  land.     From  the  execution 
and  other  proceedings  subsequent  to  judgment,  one  of  these 
lots  was  omitted.     After  the  sale  and  delivery  of  the  deed, 
the  purchaser  discovered  the  omission.  By  a  proceeding  in 
equity,  he  succeeded  in  setting  aside  the  sale  and  the  satis- 
faction of  the   judgment  thereby  produced,  and  obtained 
leave  to  issue  a  new  execution  in  conformity  with  his  judg- 
ment .=^     This  case,  it  will  be  seen,  did  not   validate  a  void 
sale.    It  did,  however,  give  relief,  which  ultimately  i)rovod 
as  effectual;   for  it  gave  the  right  to  make  a   sale  of  prop- 
erty which  had  not  been  sold  at  all.  Where  a  mistake,  made 

1  Young  V.  Dowling,  15  111.  481,  485. 

2  Dickey  v.  Beatty,  14  Ohio  St.  38f);  Mahan  v.  Reeve,  6  Blackf.  215; 
Ward  V.  Brewer,  19  111.  291,  68  Am.  Dec.  .o96;  Rogers  v.  Abbott,  :{7  Ind. 
138;  Runnels  v.  Kaylor,  95  Ind.  503;  Keepfer  v.  Force.  S()  Ind.  81. 

3  Snyder  v.  Ives,  42  Iowa.  157. 

Ill 


§   55  VOID    JUDICIAL    SALES. 

in  describing  property  in  a  mortgage,  has  been  carried  into 
the  proceedings  for  foreclosure,  so  that  a  piece  of  land  has 
been  throughout  improperly  designated,  the  mortgagee  is  not 
without  redress.  He  may,  notwithstanding  the  judgment 
and  sale,  at  least  where  he  is  the  purchaser,  maintain  an 
action  to  reform  the  mortgage,  and  to  foreclose  it  as 
reformed.  The  techical  objection  to  this  proceeding  is,  that 
the  mortgage  has  already  become  merged  in  the  judgment 
of  foreclosure,  and  no  longer  exists  for  the  purpose  of  being 
reformed.  To  this  objection,  this  reply  is  generally  made: 
"The  reformed  mortgage  is  not  merged  in  any  decree,  for 
there  is  no  decree  for  the  sale  of  any  premises  described  in 
the  mortgage,  as  corrected  and  reformed.  The  decree  may 
be  satisfied  at  least  pro  tanto  to  the  amount  of  the  sale  ; 
but  the  decree  was  based  on  the  mistaken,  and  not  the  true, 
mortgage;  the  sale  was  of  land  not  embraced  in  the  true 
mortgage  :  no  money  or  other  valuable  thing  was  ever  re- 
ceived by  plaintiff;  the  whole  proceeding  is  infected  by  the 
original  mistake,  and  is,  therefore,  baseless,  unsubstantial 
and  nugatory."^  Relief  will  be  gi-anted  against  all  persons 
claimino-  under  the  mortgagor,  who  do  not  stand  in  the 
position  of  purchasers  or  incumbrancers  in  good  faith,  for 
value,  and  without  notice.^  Where  some  person  other  than 
the  mortgagee  has  become  the  purchaser  under  the  fore- 
closure, we  presume  his  remedy  must  be  by  a  suit  seeking 
to  be  subrogated  to  the  mortgagee's  right  to  have  the  mort- 
gage  reformed  and  foreclosed,  according  to  ttie  description 
intended  by  the  parties.  It  is  doubtful  whether  such  pur- 
chaser can  reform  the  mortgage,  the  decree  of  foreclosure 
and  sheriff's  deed  in  one  suit.^  While  he  has  equities  of  a 
very  high  character,  they    probably  do  not  entitle  him  to 


J  Davenport  v.  Sovil,  6  Ohio  St.  465;  Conyers  v.  Merlcles,  75  Ind,  443; 
State  Bank  v.  Abbott,  20  Wis.  599;  Blodgett  v.  Hobart,  18  Vt.  414. 

2  Strang  v.  Beach,  11  Ohio  St.  283;  78  Am.  Dec.  308. 

3  Miller  V.  Kolb,  47   Ind.  220;  Lewis   v.  Owen,  64  Ind.  446;  Angle   v. 
Spear,  66  Ind.  488. 

112 


VOID    JUDICIAL    SALES.  §   55 

treat  his  purchase  as  a  complete  and  binding  acquisition  of 
lands  which  have  never  been  ordered  sold,  which  no  officer 
bad  any  authority  to  sell,  and  which,  therefore,  could  never 
have   induced   that   competition  among    intending    bidders 
which  would  have  attended  a  sale   by  a  proper  description 
and  based  on  unquestionable  authority.     In  California,  the 
rule  is  otherwise.     In  that   State  a  mistake  was  made  in 
describing  the  number  of  the  block  in  which  the  lot  intended 
to  be  mortgaged  was   situate.     This  mistake  was  repeated 
in  the  decree,  order  of  sale  and  deed  ;  but  the  sheriff  pointed 
out  to  the  bidders  the   lot  intended  to  be   morto-ajrcd,  and 
sold  it  to  one  of  them,  who  was  the  mortgrairee.    Under  the 
sale  he  took  possession,  and,  while  continuing  in  possession 
sold  the  lot  and  conveyed  it  by  a  correct   description.    The 
vendee,   several    years    afterwards,  intervened    in    a    suit 
brought  against  his  tenant  to  recover  possession  of  the  lot, 
and   disclosed  his     equities   to    the   court    by    appropriate 
pleadings.     The  court  was  of  opinion  that  the  mortgage, 
decree,  and  sheriff's  deed  might  all  be  reformed  in  this  pro- 
ceeding, saying,  in  support  of  its  judgment:"   But  it  is  said 
the  mortgage  cannot  now  be  reformed,  because    it   has  be- 
come merged  in  the  judgment  of  foreclosure,  and  that  it  is 
not  competent  for  a  court  of  equity  to  reform  the  judgment 
and  the  sheriff's  deed.     We  have  been  referred  to    no  au- 
thorities in  support   of  this  proposition,  and,  on  principles 
of  reason  and  justice,  we  do  not   perceive   wiiy  a   court  of 
equity  may  not  reform  mistakes  in  judgments  or  decrees, 
in  like  manner  as  in    written   instruments.     But   it  is  said 
there  was  no  mistake,  either  in  the  decree  or  sheriff's  deed, 
which  followed  the  description  in  the  mortgage,  and  could 
not    have  done  otherwise  ;  and,  consequently,  there   is   no 
mistake  to  reform  in  either  of  them.     As  well  might  it  be 
claimed  that  if  there  be  a  mistake  in  the  first  of  a  series  of 
conveyances,  which  was  carried  out  through  all  the  subse- 
quent conveyances,  that  the  court  could  only  correct  the 
mistake  in  the  first  deed;   and  that,  in   fact,  there   was   no 

113 


§    55  VOID    JUDICIAL    SALES. 

mistake  in  the  subsequent  deeds,  which  were  correctly 
copied  from  the  first,  as  they  were  intended  to  be.  But  a 
court  of  equity  does  not  administer  justice  in  these  narrow 
principles.  It  will  not  only  go  back  to  the  original  error 
and  reform  it,  but  will  administer  complete  justice,  by  cor- 
recting all  subsequent  mistakes  which  grew  out  of  and  were 
superinduced  by  the  first.  It  would  be  a  rare  thing  to  re- 
form the  first,  and  perpetuate  the  last,  by  refusing  to  dis- 
turb it.  The  rule  in  equity  is  to  do  nothing  by  halves,  but, 
in  proper  cases,  to  administer  a  full  measure  of  relief,  so  as 
to  avoid  circuity  of  action  and  promote  the  ends  of  justice."^ 
If  there  is  no  mistake  in  the  decree  ordering  a  sale,  or  if 
the  sale  is  made  under  an  ordinary  money  judgment,  and  a 
mistake  is  made  in  the  advertisement  of  sale,  levy  or  deed, 
or  in  all  them,  and  it  clearly  appears  that  such  mistake  es- 
caped attention,  and  that  the  officer  sold  and  the  purchaser 
in  o;ood  faith  bought,  certain  lands  which  were  in  fact  those 
intended  to  be  levied  upon,  sold,  and  conveyed,  there  is  a 
growing  inclination  on  the  part  of  courts  of  equity  to  relieve 
the  purchaser,  where  so  to  do,  would  be  just,  by  reforming 
the  sheriff's  deed,  and,  if  necessary,  the  levy,  and  thereby 
vesting  the  purchaser  with  the  title  to  that  which  was  in 
fact  intended  to  be  sold  and  conveyed.-  In  those  States 
wherein  equity  does  not  usually  aid  the  defective  execution 
of  a  statutory  power,  we  judge  that  this  rule  cannot  prevail 
where  all  the  prerequisites  prescribed  by  law  have  been 
observed,  but  the  purchaser  has  either  received  no  convey- 
ance or  one  which  is  not  such  as  he  is  entitled  to  receive. 
In  this  case,  the  parties  whose  property  was  sold  will  be 
enjoined  from  availing  themselves  of  the  omission,^  or  the 

1  Quivey  v.  Baker,  37  Cal.  471. 

2  Bartlett  v.  Judd,  21  N.  Y.  200;  78  Am.  Dec.  131 ;  Colie  v.  Jameson, 
13  Nat.  Bank  Reg.  4;  Stewart  v.  Pettigrew,  28  Ark.  372;  Johns  v.  Rome, 
5  Blackf.  421;  Zingsem  v.  Kidd,  29  N.  J.  Eq.  516;  Quivey  v.  Baker,  37 

Cal.  471. 

3Wortman  v.  Skinner,  1  Beas.  358;  De  Riemer  v.  De  Cantillon,  4 
Johns.  Ch.  85. 

114 


VOID    JUDICIAL    SALES.  §   55 

officer  will  be  compelled  to  perform  his  duty  by  executing 
a  conveyance  in  proper  form.^ 

1  Jelks  V.  Barrett,  52  Miss.  315;  Stewart  v.  Stokes,  33  Ala.  494;  Free- 
man on  Executions,  sec.  332.  Deeds  of  commissioners  and  administra- 
tors may.  in  certain  cases,  be  reformed  by  equitable  action  in  Missouri. 
Houx  V.  Count}-  of  Bates,  61   Mo.  391 ;  Grayson   v.  Weddle,  63  Mo.  523. 

115 


§  56  VOID    JUDICIAL    SALES. 


CHAPTER  VI. 


THE    CONSTITUTIONALITY    OF    CURATIVE    STATUTES. 

SECTION. 

ilG.  Cunitive  Statutes  Upheld  by  Supreme  Court  of  United  States. 

57.  Curative  Statutes  Contirming  Irregular  Judicial  Proceedings. 

.^8.  Curative  Statutes  Confirming  Void  Judicial  Proceedings. 

59.  Defects,  other  than  Jurisdictional,  which  are  Pronounced  Incur- 

able. 

60.  Informalities  which  may  be  Waived  by  Subsequent  Statutes. 
Gl'.    Limitation  on  Effect  of  Curative  Statutes. 

62.    General  lietlection  Concerning  Curative  Statutes. 

§  5(j.  Curative  Statutes  Upheld  by  Supreme  Court  of 
United  States. — Numerous  statutes  have  been  enacted,  pro- 
fessing to  validate  judicial  sales  and  proceedings  which, 
without  the  aid  of  such  statutes,  were  unquestionably  inop- 
erative, both  at  law  and  in  equity.  Such  statutes  are  clearly 
retrospective.  They  also  take,  at  least,  the  legal  title  away 
from  its  owner,  and  vest  it  in  another  person  without  due 
process  of  law.  They  usuall}',  if  not  universally,  do  even 
more  than  this,  for  they  give  force  to  titles  which  are  not 
less  void  in  equity  than  at  law.  They  have,  therefore,  been 
questioned  as  conflicting  with  express  constitutional  pro- 
visions, and  also  as  violating  some  principles  which,  even 
without  any  direct  constitutional  expressions,  must  be 
admittted  to  prevail  under  every  civilized  form  of  govern- 
ment.^ 

^  For  an  annunciation  of  the  rule  that  there  must  necessarily  be  some 
restraints  upon  legislative  authority  in  every  free  and  civilized  country, 

116 


VOID    JUDICIAL    SALES.  §   56 

We  shall  first  call  attention  to  a  case  wliieli,  as  it  arose 
in  a  State  then  having  no  constitution,  may,  perhaps,  be 
accepted  as  an  authoritative  determination  of  this  question, 
where  it  is  to  be  answered  solely  from  the  constitution  of 
the  United  States,  as  that  instrument  stood  before  the 
adoption  of  the  fourteenth  amendment.  Jonathan  Jenckes 
died  in  New  Hampshire,  leaving  a  will  which  was  there 
admitted  to  probate.  The  executrix  obtained  a  license  of 
the  judge  of  probate  in  New  Hampshire,  purportin<'-  to 
authorize  her  to  sell  lands  in  Khode  Island.  Under  this 
license,  she  sold  and  conveyed  lands  in  the  last  named  State. 
The  sale  was  confessedly  void,  because  the  courts  of  New 
Hampshire  had  no  jurisdiction  over  lands  situate  in  another 
State.  She  made  an  application  to  the  legislature  of  Ivhode 
Island,  stating  the  facts  in  her  petition,  a)id  thereupon  an 
act  was  passed  at  the  June  session  of  1792,  ratify  in"-  and 
confirming  the  title  based  on  her  sales  and  conveyances. 

In  determining  the  constitutionality  of  this  act,  Mr. 
Justice  Story,  delivering  the  opinion  of  the  supreme  court 
of  the  United  States,  said:  *'  Rhode  Island  is  the  only 
State  in  the  union  which  has  not  a  written  constitution  of 
government,  containing  its  fundamental  laws  and  institu- 
tions. Until  the  revolution  of  177(5  it  was  governed  by  the 
charter  granted  by  Charles  II.,  in  the  fifteenth  year  of  his 
reiorn.  That  charter  has  ever  since  continued  in  its  general 
provisions  to  regulate  the  exercise  and  distribution  of  the 
powers  of  government.  It  has  never  been  formally  abro- 
gated by  the  people,  and,  except  so  far  as  it  has  been 
modified  to  meet  the  exigencies  of  the  revolution,  may  be 
considered  as  now  a  fundamental  law.  By  this  charter  the 
power  to  make  laws  is  granted  to  the  general  asseml)ly  in 
the  most  complete  manner,  'so  as  such  laws,  etc.,  be  not 
contrary  and  repugnant  unto,  but  as  near  as  may  be  agree- 

independent  of  direct  constitutional  j)roliiI)iti()ns  and  assiiraiuM's,  see 
Calder  v.  Bull,  :J  Dall.  SSd;  Wilkinson  v.  i.cland,  2  Tet.  CjiJ;  I.oau  Asso- 
ciation V.  Topeka,  20  Wall.  G(;:3;  Story  on  the  Const.,  .*;cc.  ]:{!)». 

117 


§  56  VOID   JUDICIAL   SALES. 

able  to  the  laws,  etc.,  of  England,  considering  the  nature 
and  constitution  of  the  place  and  people  there.'  What  is 
the  true  extent  of  the  power  thus  granted,  must  be  open  to 
explanation,  as  well  by  usage  as  by  construction  of  the 
terms  in  which  it  is  given.  In  a  government  professing  to 
regard  the  great  rights  of  personal  liberty  and  of  property, 
and  which  is  required  to  legislate  in  subordination  to  the 
general  laws  of  England,  it  would  not  lightly  be  presumed 
that  the  great  principles  of  Magna  Charta  were  to  be  dis- 
regarded, or  that  the  estates  of  its  subjects  were  liable  to 
be  taken  away  without  trial,  without  notice  and  without 
offense.  Even  if  such  authority  could  be  deemed  to  have 
been  confided  by  the  charter  to  the  general  assembly  of 
Rhode  Island  as  an  exercise  of  transcendental  sovereignty, 
before  the  revolution,  it  can  scarcely  be  imagined  that  that 
great  event  could  have  left  the  people  of  that  State  sub- 
jected to  its  unconditioned  and  arbitrary  exercise.  The 
government  can  scarcely  be  deemed  to  be  free,  where  the 
rights  of  property  are  left  solely  dependent  upon  the  will 
of  a  legishitive  body,  without  any  restraint.  The  funda- 
mental maxims  of  a  free  government  seem  to  require  that 
the  rights  of  personal  liberty  and  private  property  should 
be  held  sacred.  At  least  no  court  of  justice  in  this  country 
would  be  warranted  in  assuming  that  the  power  to  violate 
and  disregard  them — a  power  so  repugnant  to  the  common 
principles  of  justice  and  civil  liberty — lurked  under  any 
general  grant  of  legislative  authority,  or  ought  to  be 
implied  from  any  general  expressions  of  the  will  of  the 
people.  The  people  ought  not  to  be  presumed  to  part  with 
rights  so  vital  to  their  security  and  well-being  without  very 
strong  and  direct  expressions  of  such  intention. 

"  In  Terrct  v.  Taylor,^  it  was  held,  by  this  court,  that 
a  grant  or  title  to  lands  once  made  by  the  legislature,  to 
any  person  or  corporation,  is  irrevocable,  and  cannot  be 
reassumed  by  any  subsequent  legislative  act,  and  that  a  dif- 

1  9  Craneh,  43. 

118 


VOID    JUDICIAL    SALES.  §   56 

ferent  doctrine  is  utterly  inconsistent  Avith  the  great  and 
fundamental  principle  of  a  republican  government,  and  with 
the  rights  of  the  citizens  to  the  free  enjoyment  of  their 
property  lawfully  acquired.  "NVe  know  of  no  case  in  which 
a  legislative  act  to  transfer  the  property  of  A  to  B,  without 
his  consent,  has  ever  been  held  a  constitutional  exercise  of 
legislative  power  in  any  State  in  the  union.  On  the  con- 
trary, it  has  been  constantly  resisted,  as  inconsistent  with 
just  principles,  by  every  judicial  tribunal  in  which  it  has 
been  attempted  to  be  enforced.  We  are  not  prepared, 
therefore,  to  admit  that  the  people  of  Rhode  Island  had 
ever  delegated  to  their  legislature  the  power  to  divest  the 
vested  rights  of  property,  and  transfer  them  -without  the 
assent  of  the  parties.  The  counsel  for  the  plaintiffs  have 
themselves  admitted  that  they  cannot  contend  for  any  such 
doctrine. 

*'The    question   then    arises,    whether    the  act  of   1792 
involves  any  such  exercise  of  power.    It  is  admitted  that  the 
title  of  an  heir  by  descent,  in  the  real  estate  of  his  ancestor, 
and  of  a  devisee  in  an  estate  unconditionally  devised  to  him, 
is,  upon  the  death  of  the  party  under  whom  he  claimed, 
immediately  devolved  upon  him,  and  he  acquires  a  vested 
estate.       But  this,  though   true    in  a  general   sense,  still 
leaves  his  title  incumbered  with  all  the  liens  which  have 
been  created  by  the  party  in  his  lifetime,  or  by  the  law  at 
his  decease.     It  is  not  an  unqualified,  though  it  be  a  vested 
interest,  and  it  confers  no  title,  except  to  what  remains 
after  every  such  lien  is  discharged.       In  the  i)rescnt  case, 
the  devisee,  under  the  will  of  Jonathan  Jenckes,  without 
doubt,  took  a  vested  estate  in  fee  in  the  lands  in  Rhode 
Island.       But  it  was  an  estate  subject  to  all  the  qualifica- 
tions and  liens  which  the  laws  of  that  State  aimcxed  to  those 
lands.       It    is    not   sufficient,    to  entitle  the  heirs   of    the 
devisee  now  to  recover,  to  establish  the  fact  that  the  estate 
so  vested  had  been  divested,  but  that  it  had  been  divested  in 
a  manner  inconsistent  with  the  principles  of  law. 

Ill)  W 


§   56  VOID    JUDICIAL    SALES. 

"  By  the  laws  of  Khode  Island,  as  indeed  by  the  laws  of 
the  other  New  England  States  (for  the  same  general  system 
pervades  them  on  this  subject,)  the  real  estate  of  testators 
and  intestates  stands  chargeable  with  the  payment  of  their 
debts,  upon  a  deficiency  of  assets  of  personal  estate.  The 
deficiency  being  once  ascertained  in  the  probate  court,  a 
license  is  granted  by  the  proper  judicial  tribunal,  upon  the 
petition  of  the  executor,  or  administrator,  to  sell  so  much 
of  the  real  estate  as  may  be  necessary  to  pay  the  debts  and 
incidental  charges.  The  manner  in  which  the  sale  is  made 
is  prescribed  by  the  general  laws.  In  Massachusetts  and 
Ehode  Island,  the  license  to  sell  is  granted,  as  a  matter  of 
course,  without  notice  to  the  heirs  or  devisees,  upon  the 
mere  production  of  proof  from  the  probate  court,  of  the 
deficiency  of  personal  assets.  And  the  purchaser  at  the  sale, 
upon  receiving  a  deed  from  the  executor  or  administrator, 
has  a  complete  title,  and  is  in  immediately  under  the  de- 
ceased, and  may  enter  and  recover  possession  of  the  estate, 
notwithstanding  any  intermediate  descents,  sales,  disseizins, 
or  other  transfers  of  title  or  seizin.  If,  therefore,  the 
whole  real  estate  be  necessary  for  the  payment  of  debts,  and 
the  whole  is  sold,  the  title  of  the  heirs  or  devisees  is,  by  the 
general  operations  of  law,  divested  and  superseded;  and  so, 
'pro  tanto,  in  case  of  a  partial  sale. 

"From  this  summary  statement  of  the  laws  of  Khode 
Island,  it  is  apparent  that  the  devisee,  under  whom  the 
present  plaintiffs  claim,  took  the  land  in  controversy,  sub- 
ject to  the  lien  for  the  debts  of  the  testator.  Her  estate 
was  a  defeasable  estate,  liable  to  be  divested  upon  a  sale  by 
the  executrix,  in  the  ordinary  course  of  law,  for  the  pay- 
ment of  such  debts,  and  all  that  she  could  rightfully  claim, 
would  be  the  residue  of  the  real  estate  after  such  debts 
were  fully  satisfied.  In  point  of  fact,  as  it  appears  from 
the  evidence  in  the  case,  more  debts  were  due  in  Rhode 
Island  than  the  whole  value  for  which  all  the  estate  there 
was  sold ;  and  there  is  nothing  to  impeach  the  fairness  of 

120 


VOID    JUDICIAL    SALES.  §   56 

the  sale.  The  probate  proceedings  further  show,  that  the 
estate  was  represented  to  be  insolvent;  and,  in  fact,  it 
approached  very  near  to  an  actual  insolvency.  So  that,  upon 
this  posture  of  the  case,  if  the  executrix  had  proceeded  to 
obtain  a  license  to  sell,  and  had  sold  the  estate  accordinjr  to 
the  general  laws  of  Rhode  Island,  the  devisee  and  her  heirs 
would  have  been  divested  of  their  whole  interest  in  the 
estate,  in  a  manner  entirely  complete  and  unexceptionable. 
They  have  been  divested  of  their  formal  title  in  another 
manner,  in  favor  of  creditors  entitled  to  the  estate;  or, 
rather,  their  formal  title  has  been  made  subservient  to  the 
paramount  title  of  the  creditors. 

*'  Some  suggestions  have  been  thrown  out  at  the  bar, 
intimating  a  doubt  whether  the  statutes  of  Rhode  Island, 
giving  to  its  courts  authority  to  sell  lands  for  payment  of 
debts,  extended  to  cases  where  the  deceased  was  not,  at  the 
time  of  his  death,  an  inhabitant  of  the  State.  It  is  believed 
that  the  practical  construction  of  these  statutes  has  been 
otherwise.  But  it  is  unnecessary  to  consider  whether  that 
practical  construction  be  correct  or  not,  inasmuch  as  the 
laws  of  Rhode  Island,  in  all  cases,  make  the  real  estate 
of  persons  deceased  chargeable  with  their  debts,  whether 
inhabitants  or  not.  If  the  authority  to  enforce  such  a  charge 
by  a  sale,  be  not  confided  to  any  subordinate  court,  it  must, 
if  at  all,  be  exercised  by  the  legislature  itself.  If  it  be  so 
confided,  it  still  remains  to  be  shown  that  the  legislative  is 
precluded  from  a  concurrent  exercise  of  power. 

"What,  then,  are  the  objections  to  the  act  of  1792? 
First,  it  is  said  that  it  divests  vested  rights  of  property. 
But  it  has  been  already  shown  that  it  divests  no  such  rights, 
except  in  favor  of  existing  liens,  of  paramount  obligation, 
and  that  the  estate  was  vested  in  the  devisee,  expressly  sub- 
ject to  such  rights.  Then,  again,  it  is  said  to  be  an  act  of 
judicial  authority,  which  the  legislature  was  not  competent 
to  exercise  at  all ;  or,  if  it  could  exercise  it,  it  could  l)e  only 
after  due  notice  to  all  the  parties  in  interest,  and  a  hearing 

121 


§   56  VOID    JUDICIAL    SALES. 

and  decree.  We  do  not  think  that  the  act  is  to  be  con- 
sidered as  a  judicial  act,  but  as  an  exercise  of  legislation. 
It  purports  to  be  a  legislative  resolution,  and  not  a  decree. 
As  to  notice,  if  it  were  necessary  (and  it  certainly  would 
be  wise  and  convenient  to  give  notice,  where  extraordinary 
efforts  of  legislation  are  resorted  to,  which  touch  private 
rights),  it  might  well  be  presumed,  after  the  lapse  of  more 
than  thirty  years,  and  the  acquiescence  of  the  parties  for  the 
same  period,  that  such  notice  was  actually  given.  But  by 
the  general  laws  of  Rhode  Island  upon  this  subject,  no 
notice  is  required  to  be,  or  is,  in  practice,  given  to  heirs  or 
devisees,  in  cases  of  sales  of  this  nature;  and  it  would  be 
strano;e  if  the  leg-islature  mio;ht  not  do,  without  notice,  the 
same  act  which  it  would  delegate  authority  to  another  to  do 
without  notice.  If  the  leo-islature  had  authorized  a  future 
sale  by  the  executrix  for  the  paj^ment  of  debts,  it  is  not 
easy  to  perceive  any  sound  objection  to  it.  There  is  nothing 
in  the  nature  of  the  act  which  requires  that  it  should  be  per- 
formed by  a  judicial  tribunal,  or  that  it  should  be  per- 
formed by  a  delegate,  instead  of  the  legislature  itself.  It 
is  remedial  in  its  nature,  to  give  effect  to  existing  rights. 

"  But  it  is  said  that  this  is  a  retrospective  act,  which  gives 
validity  to  a  void  transaction.  Admitting  that  it  does  so, 
still  it  does  not  follow  that  it  may  not  be  within  the  scope 
of  the  legislative  authority,  in  a  government  like  that  of 
Rhode  Island,  if  it  does  not  divest  the  settled  rights  of 
property.  A  sale  had  already  been  made  by  the  executrix 
under  a  void  authority,  but  in  entire  good  faith  (for  it  is 
not  attempted  to  be  impeached  for  fraud),  and  the  proceeds, 
constituting  a  fund  for  the  payment  of  creditors,  were 
ready  to  be  distributed  as  soon  as  the  sale  was  made  effect- 
ual to  pass  the  title.  It  is  but  common  justice  to  presume 
that  the  legislature  was  satisfied  that  the  sale  was  bona  fide, 
and  for  the  full  value  of  the  estate.  No  creditors  have  ever 
attempted  to  disturb  it.  The  sale,  then,  w^as  ratified  by  the 
legislature,  not  to  destroy  existing  rights,  but  to  effectuate 

122 


VOID    JUDICIAL    SALES.  §   57 

them,  and  in  a  manner  beneficial  to  the  parties.  "We  cannot 
say  that  this  is  an  excess  of  legislative  power,  unless  we  are 
prepared  to  say  that,  in  a  State  not  having  a  written  consti- 
tution, acts  of  legislation  having  a  retrospective  operation, 
are  void  as  to  all  persons  not  assenting  thereto,  even  though 
they  may  be  for  beneficial  purposes,  and  to  enforce  existing 
rights.  We  think  that  this  cannot  be  assumed,  as  a  general 
principle,  by  courts  of  justice.  The  present  case  is  not  so 
strons:  in  its  circumstances  as  that  of  Calder  v.  Bull,i  or 
Rice  V.  Parkman,^  in  both  of  which  the  resolves  of  the  leg- 
islature were  held  to  be  constitutioual."  ^ 

§  57.   Confirminj?    Irregular    Jiuliciul    Proceedings. — 
The  decision  just  quoted  is  extreme  in  its  character,  in  this, 
that  it  aflirms  the  constitutionality  of  a  statute  which  con- 
firmed proceedings  that  had,  of  themselves,  not  even  the 
shadow  of  validity.     The  defect  in  the  title,  made  good  by 
this  statute,  did  not  arise  from  any  irregular  exercise  of 
existing  authority,  but  from  the  palpable  absence  of   all 
authority  whatsoever.     The  court,  under  which  the  execu- 
trix had  acted,  was  notoriously  without  jurisdiction  in  the 
matter.     In  so  far  as  this  decision  maintains  that  proceed- 
ings, prosecuted  without  jurisdiction  over  the  person  or  sub- 
ject-matter, may  be  subsequently  validated  by  legislative 
action,  we  think  it  is  squarely  in  conflict  with  the  opinions 
of  the  jurists  of  the  present  age.      But  mere  irregularities 
of  proceeding,  though  of  so  grave  a  character  as  to  render 
a  judicial  or  execution  sale  inoperative,  may  be  deprived  of 
their  evil  consequences  by  subsequent  legislation.    In  Penn- 
sylvania, a  judgment  prematurely  entered  was  confirmed  by 
'  an  act  of  the  legislature,  after  a  sale  of  the  defendant's 
property  had  been  made  under  it.     "  The  error  in  entering 
the  judgment,"  said  the  court,  "  is  cured  by  the  confirming 

1  3  Dall.  Rep.  386. 

2  16  Mass.  Rep.  320. 

2  Wilkinson  v.  Lelainl,  2  Pet.  G50. 

123 


§   57  VOID    JUDICIAL    SALES. 

act;  the  constitutionality  of  this,  no  man  can  doubt.  It 
impaired  no  contract,  disturbed  no  vested  right,  and  if 
ever  there  was  a  case  in  which  the  legislature  ought  to 
stretch  forth  its  strong  arm  to  protect  a  whole  community 
from  an  impending  evil,  caused  by  mere  slips,  this  was  the 
occasion.  Confirming  acts  are  not  uncommon — are  very 
useful;  deeds  acknowledged  defectively  by  feme  coverts 
have  been  confirmed,  and  proceedings  and  judgments  of 
commissioned  justices  of  the  peace,  who  were  not  commis- 
sioned agreeably  to  the  constitution,  or  where  their  power 
ceased  on  the  division  of  the  counties,  until  a  new  appoint- 
ment. This  law  is  free  from  all  the  odium  to  which  retro- 
spective laws  are  generally  exposed.  Where  a  law  is  in  its 
nature  a  contract,  where  absolute  rights  are  vested  under 
it,  a  law  retrospecting,  even  if  constitutional,  would  not  be 
extended  by  any  liberal  construction,  nor  would  it  be  con- 
strued, by  any  general  words,  to  embrace  cases  where 
actions  are  brought.  Retrospective  laws,  which  only  vary 
the  remedies,  divest  no  right,  but  merely  cure  a  defect  in  a 
proceeding  otherwise  fair — the  omission  of  formalities  which 
do  not  diminish  existing  obligations,  contrary  to  their  situ- 
ation when  entered  into  and  when  prosecuted;  for  one  is 
consistent  with  every  principle  of  natural  justice,  while  the 
other  is  repugnant.  The  plaintiff  in  error  could  not  be 
injured,  whether  the  judgment  was  entered  on  the  Monday 
or  Wednesday  of  the  week.  It  did  not  deprive  him  of  any 
opportunity  of  defense.  If  he  filed  a  counter  statement  or 
plea,  appeared  and  took  defense  any  time  in  the  week,  the 
court  would  have  received  it."  ^  But,  as  a  general  rule,  the 
court  will  not  uphold  statutes  which  interfere  with  the  effect 
of  their  pre-existing  judgments.'^      In  Indiana,  however,  a 


1  Underwood  v.  Lilly,  10  S.  &  R.  97. 

2  Hence,  the  legislature  cannot  auttiorize  a  court  to  reopen  its  judg- 
ments after  the  time  for  appeal  has  expired.  De  Chastellux  v.  Fairchild, 
15  Pa.  St.  IS;  s.  C,  53  Am.  Dec.  570;  Hill  v.  Town  of  Sunderland,  3  Vt. 
507;  Davis  v.  Menasha,  21  Wis.  491 ;  Taylor  v.  Place,  4  R.  I.  324;  Lewis 

124 


VOID    JUDICIAL    SALES.  §   58 

curative  act  was  held  valid,  which  made  valid  the  procced- 
inors  of  a  term  of  court  held  without  authority  of  law.^ 
But,  in  this  State,  the  extreme  ground  is  maintained,  that 
a  legislature  may  always  make  void  acts  valid,  unless 
restrained  by  some  direct  constitutional  provision.'-  In  Mas- 
sachusetts, an  executrix's  sale  was  confirmed,  in  a  case  where 
she  had  given  no  notice,  as  prescribed  by  law,  of  her  peti- 
tion for  the  license  to  sell,  and  the  confirmatory  act  was 
declared  valid.  But  in  this  case  the  heirs  had,  in  writing, 
assented  to  the  sale.^ 

§  58.  Proceedings  Based  on  Void  Judgments  Cannot 
be  Validated. — One  of  the  limitations  on  the  enactment  of 
valid  curative  statutes  is,  that  a  legislature  cannot  make 
immaterial,  by  subsequent  enactment,  an  omission  w'hich  it 
had  no  authority  to  dispense  with  by  previous  statute.*  It 
is  usually  understood  that  the  legislature  has  no  power  to 
authorize  an  adjudication  against  a  person  without  giving 
him  any  opportunity  of  making  his  defense.  This  he  can- 
not make  unless  he  has  some  notice  of  the  proceeding  against 
him.  There  must  be  something  to  o-ive  the  court  iurisdic- 
tion  over  his  person.  If,  therefore,  the  proceedings  had  in 
a  court  are  prosecuted  without  jurisdiction,  the  legislature 
cannot  subsequently  make  them  valid.^  An  act  was  passed 
by  the  legislature  of  Illinois,  and  being  invoked  for  the 
purpose  of  sustaining  proceedings  where  no  service  of  sum- 
mons had  been  made  on  the  defendants,  its  validity  was 
denied  in  an  opinion  by  Caton,  C.  J.,  in  the  course  of 
which  he  said:    "If  it  v^^as  competent  for  the   legislature  to 

V.  Webb,  3  Greenl.  326 ;  Denny  v.  Mattoon,  2  Allen,  379;  79  Am.  Dec. 
784,  overruling  Braddee  v.  Browntleld,  2  W.  &  S.  271. 

1  Walpole  V.  Elliott,  18  Ind.  2r)8;  81  Am.  Deo.  358. 

2  lb.;  Andrews  v.  Russell,  7  Hlackf.  474;  Grimes  v.  Doe,  8  Blackf.  371. 

3  Sohier  v.  Mass.  Gen'l.  Hospital,  3  Gush.  483. 
*  State  V.  Squires,  20  Iowa,  340. 

5  Hopkins  v.  Mason,  01  Barb.  469;  Hart  v.  Henderson,  17  Mich.  218; 
Grifiin  v.  Cunningham,  20  Gratt.  109;  Lane  v.  Nelson,  79  Pa.  St.  407; 
Pryor  v.  Downey,  50  Cal.  389;  s.  c,  19  Am.  Rep.  656. 

125 


§  58  VOID   JUDICIAL   SALES. 

make  a  void  proceeding  valid,  then  it  has  been  done  in  this 
case.     Upon  this  question  we  cannot  for  a  moment  doubt 
or  hesitate.    They  can  no  more  impart  a  binding  efficacy  to 
a  void  proceeding,  than  they  can  take  one  man's  property 
from  him  and  give  it  to  another.      Indeed,  to  do  the  one  is 
to  accomplish  the  other.      By  the  decree  in  this  case,  the 
will  in  question  was  declared  void,  and,  consequently,  if 
effect  be  given  to  the  decree,  the  legacies  given  to  those 
absent  defendants  will  be  taken  from  them,  and  given  to 
others,  according  to  our  statutes  of  descents.      Until  the 
passage  of  the  act  in  question,  they  were  not  bound  by  the 
verdict  of  the  jury  in  this  case,  and  it  could  not  form  the 
basis  of  a  valid  decree.       Had  the  decree  been  rendered 
before  the  passage  of  the  act,  it  would  have  been  as  com- 
petent to  make  that  valid,  as  it  was  to  validate  the  antece- 
dent proceedings,  upon  which  alone  the  decree  could  rest. 
The  want  of  jurisdiction  over  the  defendants  was  as  fatal  to 
the  one  as  it  could  be  to  the  other.    If  we  assume  the  act  to 
be  valid,  then  the  legacies,  which  before  belonged  to  the 
legatees,  have  now  ceased  to  be  theirs,  and  this  result  has 
been  brought  about  by  the  legislative  act  alone.    The  effect 
of  the  act  upon  them  is  precisely  the  same  as   if  it  had 
declared,  in  direct  terms,  that  the  legacies  bequeathed  by 
this  will   to  these  defendants,  should  not  go  to  them,  but 
should  descend  to  the  heir  at  law  of  the  testator,  according 
to  our  law  of  descent.     This,  it  will  not  be  pretended,  they 
could  do  directly,  and  they  had  no  more  authority  to  do  it 
indirectly,  by  making  proceedings  binding  upon  them  which 
were  void  at  law."  ^    In  the  case  just  cited,  no  sale  had  been 
made.     It  was  a  suit  in  equity  to  set  aside  a  will.     A  trial 
had  been  had,  resulting  in  favor  of  the  plaintiffs.     It  was 
then  discovered  that  certain  non-resident  minor  defendants, 
who  had  answered  by  guardian  ad  litem,  had  not  been  prop- 
erly served  with  process.     The  effect  sought  by  the  statute 

1  McDaniel  v.  Correll,  19  111.  228;  s.  C,  68  Am.  Dec.  587. 

126 


VOID    JUDICIAL    SALES.  §   ^S 

was  simply  to  validate  a  void  judgment.       lu  the  case  of 
Nelson  v.  Rountree,^  it  appeared  that  a  judgment  had  been 
entered  in  an  action  in  which  the  summons  was  served  by 
publication.       There    was    no   authority  for  such  service, 
because  the  affidavit  for  the  order  of  publication  failed  to 
show  that  a  cause  of  action  existed  against  the  defendants. 
The  judgment  was,  therefore,  void.     The  legislature  subse- 
quently declared  that  "  all  orders  of  publication,  heretofore 
made,  shall  be  evidence  that  the  court  or  officer,  authorized  to 
grant  the  same,  was  satisfied  of  the  existence  of  all  the  fact 
requisite  to  granting  such  order  or  orders,  and  shall  be  evi- 
dence of  the  existence  of  such  facts."     Perhaps  the  consti- 
tutionality of  this  statute  might  have  been  maintained,  on  the 
ground  that  it  simply  created  a  rule  of  evidence,  or  shifted 
the   burden  of  proof  from  one  person  to  another.-      Tiie 
supreme  court  of  the  State,  however,  regarded  it  as  a  con- 
firmatory act,  and  denounced  it  as  follows :   "  If  it  was  com- 
petent for  the  legislature  to  make  this  declaration,  then  it 
was  competent  for  it  to  have  declared  that  to  be  a  judgment, 
which  was  before  no   judgment,  and  binding  on  the  party 
against  whom  formally  rendered,  when  before  he  was  not 
bound  at  all;  for  such  is  the  direct  result.       It  is  a  propo- 
sition, not  now  to  be  discussed  at  this  day,  that  the  legishi- 
ture  has  no  such  power."  ^    Speaking  of  an  act  of  assembly 
purporting   to   validate    certain    proceedings    in  partition, 
which    were   void  because  one   of  the  defendants  had  no 
notice  of  their  pendency,  the  supreme  court  of  Pennsyl- 
vania said:    "  The  act  itself  is  unconstitutional  and  void,  as 
an  infrino-ement  of  the  inhibition  contained  in  the  ninth  sec- 
tion  of  the  declaration  of  rights,  article  ix  of  the  constitu- 

1  23  Wis.  307. 

2  The  legislature  may  cliauge  the  burden  of  proof  by  enacting  tliat 
proceedings  theretofore  takeu  in  a  court  of  special  or  limited  jurisdiction 
shall  be  presumed,  pnma/acie,  to  have  been  taken  riglitfully;  and  thus 
compel  a  person  assailing  such  proceedings  to  slmw  that  tiie  court  never 
acquired  jurisdiction.    Chandler  v.  Northrop,  24  liarb.  12'.). 

3  Nelson  V.  Rountree,  23  Wis.  370. 

127 


§  58  VOID   JUDICIAL   SALES. 

tion,  that  no  person  '  can  be  deprived  of  his  life,  liberty 
and  property,  unless  by  the  judgment  of  his  peers,  or  the 
law  of  the  land.'  What  is  the  act  but  a  mere  bold  attempt 
to  take  the  property  of  A  and  give  it  to  B?  It  was  not  a 
case  in  which  the  mere  irregularity  of  a  judgment,  or  a 
formal  defect  in  the  acknowledgment  of  a  deed,  was  cured, 
where  the  equity  of  the  party  is  complete,  and  all  that  is 
wanting  is  legal  form.  Such  were  Underwood  v.  Lilly ,^ 
Tate  V.  Stooltzfoos,-  Satterlee  v.  Matthewson,^  and  Mercer 
V.  Watson.*  On  the  contrary,  it  is  very  clearly  within  the 
principle  of  Norman  v.  Heist,^  Greenough  v.  Greenough,^ 
De  Chastellux  v.  Fairchild,"^  Bagg's  Appeal,^  Shafer  v. 
Eneu,^  and  Shonk  v.  Brown. ^'^  These  cases  abundantly  sus- 
tain the  position  that  an  act  of  the  legislature  cannot  take 
the  property  of  one  man  and  give  it  to  another,  and  that 
when  it  has  been  attempted  to  be  taken  by  a  judicial  pro- 
ceeding, as  a  sheriff's  sale,  which  is  void  for  want  of  juris- 
diction, it  is  not  in  the  power  of  the  legislature  to  infuse 
life  into  that  which  is  dead — to  give  effect  to  a  mere  nullity. 
That  would  be  essentially  a  judicial  act — to  usurp  the  prov- 
ince of  the  judiciary — to  forestall  or  reverse  their  decision. ^^ 
Of  course,  the  legislature  can  no  more  validate  proceedings 
before  a  court  or  officer  incompetent  to  entertain  and  decide 
them,  than  it  can  vivify  judgments  void  for  want  of  juris- 
diction over  the  person  of  the  defendant. ^^ 

1  10  S.  &  R.  97. 

2  16  S.  &  R.  35 ;  s.  c,  16  Am.  Dec.  546. 

3  16S.  &R.  191. 
-*  1  Watts,  330. 

5  5  W.  &  S.  171 ;    s.  C,  40  Am.  Dec.  496. 

6  11  Pa.  St.  489. 

7  15  Pa.  St.  18;  s.  c,  53  Am.  Dec.  570. 

8  43  Pa.  St.  512. 

9  54  Pa.  St.  304. 
10  61  Pa.  St.  320. 

"  Richards  v.  Rote,  68  Pa.  St.  255. 

12  Deuuy  v.  Mattoon  2  Allen,  383;  State  v.  Doherty,  60  Me.  504;  Pryor 
V.  Downey,  50  Cal.  389;  s.  C,  19  Am.  Rep.  656. 

128 


VOID    JUDICIAL    SALES.  §   58 

In  Stevens  v.  Enders,^  the  Supremo  Court  of  New  Jersey 
determined  that,  with  respect  to  estates  in  remainder,  the 
judges  of  the  court  of  common  pleas  had  no  authority  to 
order  or  approve  a  sale  in  partition.  In  March,  18()1,  the 
leofislature  undertook  to  validate  all  sales  made  in  partition, 
notwithstanding  the  existence  of  estates  in  remainder  or 
reversion,  unless  the  proceedings  for  partition  "shall  have 
been  reversed  or  set  aside  on  certiorari,  writ  of  error,  or 
other  proceedings  to  review  the  same,  brought  within  three 
years  after  such  partition  sale."  When  this  statute  came 
before  the  court,  it  was  declared  unconstitutional  in  a  very 
forcible  opinion,  the  chief  grounds  of  which  were:  1st, 
that  when  the  partition  sale  was  made,  the  court  had  no 
jurisdiction  over  either  the  estate  in  remainder,  or  the 
persons  of  the  remaindermen;  2d,  that  as  a  conse- 
quence of  this  want  of  jurisdiction,  the  estates  in  remainder 
must  have,  notwithstanding  the  partition  sale,  remained 
vested  in  the  remaindermen,  until  the  passage  of  the  act 
of  March,  1861;  3d,  that  to  allow  such  estates  to  be 
divested  by  such  act,  is  to  take  them  "without  a  hearing, 
or  an  opportunity  for  a  hearing  being  given  to  the  owner," 
and  is  an  infringement  upon  that  part  of  the  bill  of  rights 
in  the  constitution  of  1844,  declarine  that  one  of  the  inalien- 
able privileges  of  men  "shall  be  that  of  possessing  and 
protecting  property."  The  court  also  distinguished  cases 
wiiich  had  arisen  under  the  prior  constitution  from  those 
existing  under  the  constitution  of  1844,  showing  that,  prior 
to  the  adoption  of  the  latter  constitution,  the  power  of  the 
legislature  was,  perhaps,  as  unlimited  as  that  of  the  legis- 
lature of  Rhode  Island,  as  established  by  the  decision  in 
Wilkinson  v.  Leland,  but  that  by  the  constitution  of  1844, 
the  powersof  government  were  distributed  into  three  depart- 
ments— legislative,  executive  and  judicial — and  each  depart- 
ment was  forbidden  from  infringing  upon  the  other.  "Since 
this  explicit  marking  out  of  the  several  departments,  it  has 

1  1  Green,  271. 

121» 


§    59  VOID    JUDICIAL    SALES. 

been  the  general  opinion,  so  far  as  I  can  learn,  that  the 
legislative  power  is  the  only  power  vested  in  the  legislature. 
The  power  of  the  legislature  being  then  thus  limited  to 
this  single  field  of  action,  how  is  the  enactment  of  the 
present  law  to  be  vindicative?  If  it  has  the  effect  intended, 
it  takes  this  vested  estate  out  of  these  remaindermen  and 
converts  it  into  money.  The  question  whether  the  owner's 
land  shall,  without  his  assent,  be  turned  into  money,  has 
alwavs,  at  the  common  law  and  in  this  State,  been  deemed 
one  addressed  to  the  judicial  discretion.  The  right  to 
decide  in  such  junctures  has  been  always  confided,  in  part, 
to  courts  of  equity."^ 

§  59.  Defects,  other  tbau  Jurisdictional,  which  have 
been  Held  Incurable. — There  are  other  defects,  besides 
jurisdictional  ones,  on  account  of  which  void  sales  have 
been  pronounced  incurable.  In  Pennsylvania,  an  execution 
sale  was  void  because  made  after  the  return  day  of  the  writ. 
Subsequently,  the  legislature  enacted  that :  "All  sales  of  real 
estate  made  by  sheriffs  or  coroners,  after  the  return  day  of 
their  several  writs  of  levari  facias^  fieri  facias,  venditioni 
exponas,  or  other  writ  of  execution,  shall  not,  on  account 
of  such  irregularity  in  such  proceedings,  beset  aside,  inval- 
idated, or  in  manner  affected;  and  such  sales  so  made  shall 
be  held  as  good  and  valid,  to  all  intents  and  purposes,  as  if 
such  sale  has  been  made  on  or  before  the  return  day  of  the 
writs  respectively."  The  Supreme  Court  of  the  State,  in 
deciding  a  case  arising  under  this  act,  asked  the  questions: 
"Is  this  act  constitutional?  The  sale  being  mades  contrary 
to  legislative  enactment,  and  declared  by  this  court  utterly 
void,  can  the  legislature  validate  such  a  sale  to  the  injury  of 
another  party?  In  plain  English,  can  they  take  one  man's 
property  and  give  it  to  another — property  which  is  secured 
to  him  by  the  constitution  and  laws?"  It  then  answered 
the  question  as  follows:  "In  this  case,  the  purchaser 
bouo-ht  in  the  face  of  a  recent  statute  which  he  was   bound 

1  Maxwell  v.  Goetschius,  40  N.  J.  L.  38,3;  s.  C,  29  Am.  Rep.  242. 

130 


VOID    JUDICIAL    SALES.  §    GO 

to  know  and  obey,  and  purchased  with  his  eyes  open.  He 
has  no  moral  chiim  to  have  the  sale  made  good.  The  act 
of  the  legislature  which  covers  this  case  is  unconstitutional 
and  void.^  A  sale  void  on  account  of  fraud  practiced  by 
the  purchaser  cannot  be  validated  by  the  legishiture.  It 
does  not  come  within  the  principle  of  that  class  of  cases  in 
which  a  legislature  has  been  held  to  have  the  power  to  con- 
firm by  retroactive  laws  the  acts  of  public  officers,  who 
have  exceeded  or  imperfectly  executed  their  authority. "^ 

§  60.  Informalities  may  be  Waived  by  Subsequent 
Curative  Acts. — Where  a  sale  is  void  for  some  defect  in 
the  proceedings,  not  jurisdictional  in  its  character,  it  may,  in 
most  States,  be  validated  by  a  subsequent  curativeact  of  the 
legislature.^  Hence,  acts  have  been  atljudged  to  be  consti- 
tutional which  validated  sales  which  were  void  because 
made  in  violation  of  the  ai)praisement  laws,*  or  based  on 
defective  levies  or  returns,^  or  on  charges  of  unlawful  or 
excessive  fees,^  or  made  by  an  officer  of  another  bailiwick 
from  that  in  which  tlie  lands  sold  were  situate.'  In  the 
opinion  of  Judge  Coolej^  "the  rule  ap[)licable  to  cases  of 
this  description  is  substantially  the  following:  If  the  thing 
Avanting,  or  which  failed  to  be  done,  and  which  constitutes 
the  defect  in  the  proceedings,  is  something,  the  necessity 
for  which  the  legislature  might  have  dispensed  with  by 
prior  statute,  then  it  is  not  beyond  the  power  of  the  legis- 


1  Dale  V.  Medcalf,  9  Pa.  St.  110.  See,  also,  Ortou  v.  Noonan,  23  Wis. 
102. 

2  White  M'ts  R.  R.  v.  White  M'ts  R.  R.,  50  N.  H.  5G. 

3  Lane  v.  Nelson,  79  Pa.  St.  407 ;  Boyce  v.  Sinclair,  3  Bush,  2G1 ;  Beach 
V.  Walker,  6  Conn.  197;  Booth  v.  Booth,  7  Conn.  350;  Wildes  v.  Vau- 
voorhis,  15  Gray,  139;  Brickhouse  v.  Sutton,  99  N.C.103;  G  Am.  St. 
Rep.  497. 

*  Davis  V.  State  Bank,  7  Ind.  316;  Thornton  v.  McGrath,  1  Duv.  349; 
Boyce  v.  Sinclair,  3  Bush,  261. 

5  Mather  v.  Chapman,  6  Conn.  54;  Norton  v.  Pettibone,  7  Conn.  319; 
S.  C,  18  Am.  Dec.  116. 

6  Booth  V.  Booth,  7  Conn.  350. 

7  Menges  V.  Wertman,  1  Pa.  St.  218,  overruled;  Menges  v.  Dentler,  33 
Pa  St.  495;  75  Am.  Dec.  616. 

131 


§    (50  VOID    JUDICIAL    SALES. 

lature  to  dipense  with   it   by  subsequent   statute.     And   if 
the  irregularity  consists  in  doing  some  act,  or  in  the  mode 
or  manner  of  doing  some   act,  which  the  legislature  might 
have  made  immaterial  by  prior  law,  it  is  equally  competent 
to  make  the  same  immaterial    by   a  subsequent  law."^     A 
partition  sale  was  made  to  a   company  of  persons,  but  the 
deed,  by  their  consent,  was  made  to  one   only,  for  conven- 
ience of    selling    and    conveying.     The   deed   was   invalid, 
because  it  did  not  follow  the  sale  and  order  of  confirmation. 
An  act  was   subsequently   passed   providing  that,  on  satis- 
factory proof  being  made  to  a  court  or  jury  that  the    lands 
were  fairly  sold,  in  good  faith  and  for  a  sufficient  consider- 
ation, the  deed  should  be   held   valid.     This   act   was   held 
free  from  constitutional  objections.'^     In  Massachusetts,  an 
act  confirming  deeds  made  by    certain   executors  was   held 
valid,  though  they  "had  not  previously  been  appointed  and 
given  bond  in  such  a  manner  as  to  authorize  them   to    exe- 
cute the  power  of  sale  conferred  by  the  will.''^  But,  in  this 
case,  the  heirs  at  law  of  the  testator  released  all  their  inter- 
est in  the  lands  at  the  time    the   executor's   deed  was  exe- 
cuted.     An    extreme  case   is   that  of    Selsby    v.  Redlon.* 
Justices'    courts  were  authorized  to  issue  executions  at  any 
time  within  two  years  after  the  entry  of  judgment.   Never- 
theless, under  a   misapprehension  of  the  law,  the  practice 
prevailed,  to  a  considerable  extent,  of  issuing  such  writs  at 
any  time  within  five  years.     The  legislature    passed  an  act 

1  Greeu  v.  Abraham,  43  Ark.  420;  Johnson  v.  Commrs,  107  Ind.  15; 
Cooley's  Const.  Lim.  371.  Hence,  deeds  not  executed  in  the  mode 
prescribed  by  statute,  may  be  validated  by  a  statute  passed  subsequently 
to  their  execution.  Watson  v.  Meicer,  8  Pet.  88;  Chesnut  v.  Shane's 
Lessee,  16  Ohio,  599;  s.  C,  47  Am.  Dec.  387;  Newman  v.  Samuels,  17 
Iowa,  528;  Shonk  v.  Brown,  61  Pa.  St.  327;  Dulany  v.  Tilghman,  6  G.  & 
J.  461;  Journeay  v.  Gibson,  56  Pa.  St.  57;  Dentzel  v.  Waldie,  30  Cal. 
138.  Contra,  Pearce  v.  Patton,  7  B.  Mon.  162;  s.  c,  45  Am.  Dec.  61; 
Russell  V.  Rumsey,  35  111.  362;  Ala.  L.  I.  &  T.  Co.  v.  Boykin,  38  Ala. 
510. 

2  Kearney  v.  Taylor,  15  How.  (U.  S.)  494. 

3  Weed  V.  Donovan,  114  Mass.  183. 
M9  Wis.  17. 

13  i 


VOID    JUDICIAL    SALES.  §   iJO 

confirming  and  validating    proceedings    taken    under  writs 
issued  more  than  two  years  after  the    entry    of    judgmi-nt. 
*'Was  it  competent  for  the  legishiture,  so    far  as    the  time 
of  issuing  was  concerned,  to  enact  that  all  executions  upon 
judgments  of  justices  of  the  peace   theretofore  issued  after 
the  expiration  of  two,  but    before    the    lapse    of  live  years 
from  the    time    the    judgments  were    rendered,    should  be 
deemed  valid  and  regular?     It  seems  to  me  that  it  was,  and 
that  the  act  operated  at  once  upon  all  such  executions,  the 
invalidity  of  which  had  not  already  been  adjudged  by  some 
competant  court  of  law  or  equity.     I  had  occasion  to  exam- 
ine the  question,  and  some  of  the  leading    authorities  upon 
it,  in  Hasbrouck  v.  Milwaukee, ^    and    deem  it  unnecessary 
to  add  to  what  is  there  said.     It  appears  to  me,  in  the  lan- 
euacre  of  Chancellor    Kent,  to    be    one    of   those  remedial 
statutes,  not    impairing    contracts    or    disturbing    absolute 
vested  rights,   but    going    only    to    confirm    rights  already 
existing,    and    in    furtherance    of    the    remedy,  by  curing 
defects  and  adding  the  means  of  enforcing  existing  oblig:i- 
tions,  the  constitutionality  of  which  has  always  been  upheld. 
The  validity  of  the   judgment    is  not    questioned,    and  the 
obligation  of  the  debtor  to  pay  not  denied.     After  the  exe- 
cution was  issued  and  the  judgment  satisfied,  the    question 
was  whether  such  satisfaction  should   stand,  and    the  cred- 
itor retain  what  in  justice  and  equity    belonged  to    him,  or 
whether  he  should  make    restoration  to  his    debtor,  and  be 
put  to  a  new  action  to  recover  his   debt.     I  think  an  act  to 
relieve  debtors  in  such  cases  to  be  not    only    just    and  rea- 
sonable, but  that  it  is  liable  to  no  constitutional  objection. "- 
Curative    statutes    may    undoubtedly    destroy    the  force 
of  an  objection  founded  on  a  mere    formality  ;  and  accord- 
ing to  many  of  the  authorities,  a  matter    may  be    regarded 
as  a  mere  formality,  within  the  meaning  of  this  rule,  if  the 
legislature  might,  in  the  first  instance,  have    authorizetl  its 

113  Wis.  50;  80  Am.  Dec.  718. 
2  Selsby  v.  Redlon,  19  Wis.  21. 

133 


§61  VOID    JUDICIAL    SALES. 

omission.  Thus,  the  legislature  may  unquestionably  provide 
that  judgments  need  not  be  signed  by  the  judge,  or  may  be 
entered  on  a  written  waiver  of  service  of  summons.  Hence, 
it  may  make  valid  judgment  not  so  signed, ^  or  founded  on 
such  waiver  of  service .^  It  has  also  been  held  that  a  sale, 
made  by  a  foreign  executor,  vested  with  a  power  of  sale  by 
the  will,  though  void  when  made,  because  not  ordered  nor 
approved  by  the  court,  may  be  validated  by  subsequent 
statute,  if  the  right  to  sell  was  not  dependent  on  anything 
but  the  iudirment  of  the  executor,  or  the  sale  must  there- 
fore  have  inevitably  been  ordered  and  approved,  had 
proper  application  been  made.^ 

§  61.  Limitation  on  Effect  of  Curative  Statutes. — Even 
in  those  States  where  the  validity  of  curative  statutes  is 
conceded,  their  operation  is  usually  limited  to  the  original 
parties.  If  a  defendant  whose  property  has  been  so  irreg- 
ularly sold  under  execution  that  his  title  is  not  divested, 
sells  to  a  purchaser  in  good  faith,  and  for  value,  the  title  of 
the  latter  is  regarded  as  a  vested  right,  which  cannot  be 
divested  by  a  subsequent  statute.  The  same  rule  usually 
prevails  in  regard  to  all  legislation  enacted  for  the  purpose 
of  confirming  deeds  which  are  invalid  for  some  informality. 
The  curative  act  does  not  operate  against  purchasers  from 
the  srantor  in  good  faith,  and  for  value,  before  its  passage.* 
The  operation  of  curative  acts,  has  also  been  denind  where 
the  proceedings  had  been,  prior  to  the  passage  of  the  act, 
pronounced  void  by  the  judgment  of  a  court   of  competent 


1  Cookerly  v.  Duncan,  87  Ind.  332. 

2  Muncie  Bank  v.  Miller,  91  Ind.  441. 

3  Smith  V.  Callighan,  66  Iowa,  562.  In  Forster  v.  Forster,  129  Mass. 
559,  it  was  decided  that  a  tax  sale,  void  for  want  of  notice  of  sale,  cannot 
be  made  valid  by  statute. 

4  Newman  v.  Samuels,  17  Iowa,  528;  Brinton  v.  Seevers,  12  Iowa,  389; 
Thompson  v.  Morgan,  6  Minn.  292;  Sherwood  v.  Fleming,  25  Tex.  Supp. 
408;  Wright  v.  Hawkins,  28  Tex.  452;  Menges  v.  Dentler,33  Pa.  St.  495; 
S.  C,  75  Am.  Dec.  616;  overruling  Menges  v.  Wertmau,  1  Pa.  St.  218. 

134 


VOID    JUDICIAL   SALES.  §   62 

jurisdiction  ;^  and,  in  Maine,  curative    acts    do  not  operate 
to  change  the  result  of  suits  previously  pending.- 

§  62.  General  Reflections  Concerning  Curative  Stat- 
utes.— It  must,  we  sup[)ose,  be  conceded  that,  i)ii()r  to  the 
adoption  of  the  fourteenth  amendment,  there  was  no  pro- 
vision in  the  constitution  of  the  United  States  which  prohib- 
ited the  State  legislatures  from  enactinfi  curative  statutes 
validating  prior  judicial  sales  and  proceedings.  The  provis- 
ion of  sec.  10,  art.  1,  forbidding  States  from  passing  ex 
post  facto  laws,  applies  exclusively  to  criminal  matters  and 
proceedings,  and  does  not  inhabit  retrospective  legislation 
in  civil  matters.^  The  same  section  also  provides  that  no 
State  shall  pass  any  "law  impairing  the  obligation  of  con- 
tracts." The  word  contracts  is  sufficiently  comprehensive 
to  embrace  conveyances.  Hence,  a  State  legislature  cannot 
annul  or  diminish  the  effect  of  a  valid  conveyance.*  But 
the  federal  constitution,  while  it  prohibited  the  impairing 
of  valid  contracts,  did  not  inhabit  the  validation  of  void 
contracts, nor  the  creation  of  obligations  ;^  nor  did  it  prevent 
the  State  legislatures  from  divesting  vested  rights  in  any 
case  where  they  could  do  so  without  imparing  the  obliga- 
tion of  some  pre-existing  contract.®  The  fifth  amendment 
to  the  constitution  of  the  United  States  declares  that  "no 
person  shall  be  deprived  of  life,  liberty  or  property,  with- 
out due  process  of  law  ;  nor  shall  private  property  be  taUon 
for  public  use  without  just    compensation."     The  prohibi- 


1  Mayor  v.  Horn,  26  Md.  194. 

2  ^dams  V.  Palmer,  52  Me.  480. 

3  Story  on  the  Const.,  sees.  134.5,  1398;  State  v.  Squires,  2G  Iowa,  340; 
Watson  V.  Mercer,  8  Pet.  88;  Carpenter  v.  Pennsylvania,  17  How.  (U.  S.) 
456;  Calder  v.  Bull,  3  Dall.  386. 

<  Story  on  the  Const.,  sec.  1376;  Fletcher  v.  Peck,  G  Cranch,  137; 
People  V.  Piatt,  17  Johns.  195;  Grogan  v.  San  Francisco,  IS  Cal.  590; 
Louisville  v.  University,  15  B.  Mon.  642. 

«  Story  on  the  Const.,  sec.  1398;  Satterlee  v.  Mathewson,  2  Pet.  3SU. 

«  Story  on  the  Const.,  sec.  1398;  Satterlee  v.  Mathewson,  2  Pet.  380; 
Calder  v.  Bui:,  3  Dall.  .386. 

185  (10) 


§   62  VOID    JUDICIAL    SALES. 

tions  contained  in  this  amendment  are  addressed  to  the 
federal  legislature,  and  do  not  operate  as  limitations  of  the 
powers  of  any  of  the  State  legislatures. ^  One  of  the 
guarantees  contained  in  the  fourteenth  amendment  is  as 
follows:  "Nor  shall  any  State  deprive  any  person  of  life, 
liberty  or  property,  without  due  process  of  law,  nor  deny 
to  any  person,  within  its  jurisdiction,  the  equal  protection  of 
the  laws."  This  provision,  in  the  language  of  Chief  Justice 
Waite,  speaking  for  the  supreme  court  of  the  United  States, 
"adds  nothing  to  the  rights  of  one  citizen  against  another. 
It  simply  furnishes  an  additional  guarantee  against  any 
encroachment  by  the  States  upon  the  fundamental  rights 
which  belong  to  every  citizen  as  a  member  of  society."^ 
But  whether  this  amendment  may,  in  any  case,  operate  as 
a  prohibition  against  curative  laws  passed  by  the  States  is, 
perhaps,  an  immaterial  inquiry  for  the  reason  that  most, 
if  not  all,  of  the  State  constitutions,  contain  limitations 
which,  in  substance,  withold  the  right  to  deprive  any  per- 
son of  his  property  without  due  process  of  law. 

Those  curative  acts  which  impart  validity  to  judicial  or 
execution  sales  otherwise  void,  necessarily  result  in  the 
transfer  of  one  person's  property  to  another,  without  the 
assent  of  the  former.  Before  the  passage  of  the  act,  prop- 
erty belonged  to  A.  After  its  passage,  the  same  property, 
without  any  act  on  the  part  of  A  or  B,  and  solely  through 
the  operation  of  the  curative  statute,  is  vested  in  the  latter. 
Such  a  statute  cannot  be  maintained  on  the  ground  that  it 
is  a  judicial  determination,  that  the  title  of  B  is  paramount 
to  that  of  A,  for  the  State  constitutions  prohibit  the  legis- 
latures from  exercising  judicial  functions.  These  consti- 
tutions also  protect  vested  rights  and  prohibit  the  taking  of 


1  Barron  V.  Mayor  of  Baltimore,  7  Pet.  243;  Withers  v.  Buckley,  20 
How.  (U.  S.)  84. 

2  United  States  v.  Cruikshank,  92  U.  S.  542;  3  Cent.  L.  J.  295;  8  Ch. 
L.  N.  233.  See  City  of  Portland  v.  City  of  Bangor,  65  Me.  120;  3  Cent. 
L.  J.  651. 

136 


VOID   JUDICIAL    SALES  §   G2 

property  from  one  person  and  o;ivin<^  it  to  another,  at  least 
in  all  cases  where  there  has  been  no  resort  to  due  process 
of  law.^  But  the  words  "property"  and  "vested  rights," 
within  the  meaning  of  these  constitutions,  are  difficult  of 
definition.  They  seem  not  to  refer  to  the  legal  title  merely 
— not  to  insure  to  a  man  that  which  at  law  belongs  to  him, 
but  which  in  equity  belongs  to  another.  The  most  justifi- 
able curative  legislation  is  that  which  does  no  more  than 
to  sive  a  legal  sanction  to  a  title  which  was  theretofore 
good  in  equity.-  So,  it  is  said,  legislatures  may  transmute 
a  moral  into  a  legal  obligation;^  and  that  "a  party  has  no 
vested  right  in  a  defense  based  upon  an  informality  not 
affecting  his  substantial  equities;"*  that  "courts  do  not 
regard  rights  as  vested  contrary  to  the  justice  and  equity 
of  the  case;"^  that  "a  party  cannot  have  a  vested  right  to 
do  a  wrong ;"'^  that  "the  rules  which  determine  the  legis- 
lative power  in  such  cases,  are  broad  rules  of  right  and 
justice.""^  So,  after  all,  the  limitation  inserted  in  the 
fundamental  laws  are  so  construed  that  their  application 
depends,  not  on  settled  principles,  but  upon  notions  of 
right  and  justice.  A  man's  title  may  be  perfect  at  law.  It 
may  also  be  unassailable  in  equity.  He  has,  nevertheless, 
no  vested  right  in  it  which  he  may  hold  paramount  to  legis- 
lative control,  unless,  in  addition  to  his  perfect  title  at  law 
and  in  equity,  his  title  also  meets  the  approval  of  the  judge 
before  whom  it  is  questioned;  the  latter,  in  withholding  or 
granting  such  approval,  being  governed  by  certain  rules  of 

1  Cooley's  Const.  Lim.,  cliap.  xi.  To  ascertain  the  meaning  of  "due 
process  of  law,"  and  of  equivalent  terms,  see  lb.;  Kennardv.  Louisiana, 
8  Ch.  L.  N.  329;  92  U.  S.  480;  Walker  v.  Sauvinet,  3  Cent.  L.  J.  445;  92 
U.  S.  90;  Murray  v.  Hoboken  L.  &  I.  Co.,  18  How.  (U.S.)  272;  Story  on 
the  Const.,  sec.  1944. 

2  Chesnut  v.  Shane,  16  Ohio,  599;  S.  <;;.,  47  Am.  Dec.  387. 

3  Weister  v.  Hade,  52  Pa.  St.  480. 
■*  Cooley's  Const.  Lim.  370. 

''  State  V.  Newark,  3  Dutch.  197. 

6  Foster  v.  Es-sex  Bank,  IG  Mass.  245. 

7  Story  on  the  Const.,  sec.  1958,  by  Cooley. 

137 


§    62  VOID    JUDICIAL    SALES. 

right  and  justice  existing  in  his  own  conscience,  but  not 
susceptible  of  that  accurate  description  which  would  enable 
us  to  recognize  them  in  the  future,  and  rely  on  them  for 
our  protection  and  guidance.  Such,  at  least,  seems  to  be 
the  result  of  the  weight  of  the  authorities. 

With  respect  to  curative  acts  affecting  judicial  and  execu- 
tion sales,  two  rules  are  commonly  put  forth  as  tests  of 
their  constitutionality.  The  first  is,  that  what  the  legisla- 
ture could  have  dispensed  with  before  the  sale,  it  may  dis- 
pense with  afterwards;^  and  the  second  is,  that  courts  do 
not  regard  rights  as  vested  contrary  to  the  justice  and 
equity  of  the  case,  but  will  determine  the  legislative  power 
on  broad  rules  of  right  and  justice.  Neither  rule  has  been 
universally  accepted  and  followed.  Thus,  though  a  statute 
may  unquestionably  authorize  property  to  be  sold  for  taxes, 
without  the  aid  of  any  judicial  proceedings  whatever,  yet 
where  such  proceedings  were  required,  and  were  so  prose- 
cuted as  to  be  void  for  want  of  jurisdiction  over  the  defend- 
ant, it  was  held  that  they  could  not  be  made  valid  by 
subsequent  legislation.^  So,  while  legislatures  may  author- 
ize guardians  and  others  to  sell  property  belonging  to 
persons  not  sui  juris,  without  applying  to  court  for  author- 
ity so  to  do,  yet  where  such  applications  are  required  to  be 
made  to  some  court,  and  the  proceedings  of  such  court  are 
void  for  want  of  jurisdiction,  they  cannot  be  subsequently 
made  valid. ^  If  the  rights  of  one  whose  property  has  been 
sold  at  a  void  sale  are  not  to  be  regarded  as  vested  except 
when,  "upon  broad  rules  of  right  and  justice,"  they  should 
be  so  regarded,  then  the  distinction  between  jurisdictional 
and  other  defects  is  immaterial.  For  it  may  be,  and  fre- 
quently is,  as  unjust  to  urge  a  jurisdictional  defect,  as  it  is 
to  urge  some  other  irregularity,  such,  for  instance,  as  the 
omission  to  give  notice  of  the  sale.     In    the  first  case,  the 

1  Cooley's  Const.  Lim.  371;  Ferguson  v.  Williams,  58  Iowa,  717. 

2  Nelson  V.  Rountree,  23  Wis.  367. 

3  See  see.  58. 

188 


VOID    JUDICIAL    SALES.  §    62 

sale  may  have  been  fair,  a  good  price  realized,  and  the  pro- 
ceeds applied  to  pay  the  debts  of  the  defendant;  while,  in 
the  second  case,  the  property  may  have  been  sacrificed  for 
want  of  the  notice  of  the  sale.  If  void  judicial  or  execution 
sales  may  be  made  valid,  it  would  seem  to  be  on  the  ground 
that  the  purchaser,  by  the  payment  of  the  money  and  its 
application  to  the  benefit  of  the  defendant,  obtained  an 
equity  which  the  legislature  might  recognize  and  transform 
into  a  legal  title  ;^  that,  in  such  a  case,  the  person  whose 
property  was  sold  has  left  to  him,  after  the  sale  and  con- 
veyance, a  mere  technical  and  unconscionable  defense  ;  and 
that,  in  such  a  defense,  there  can  be  no  vested  right.  But 
this  view  of  the  question  is  not  invariably  correct  nor  neces- 
sarily conclusive.  In  the  first  place  everybody  is  conclu- 
sively presumed  to  be  acquainted  with  the  law.  It  cannot, 
therefore,  be  expected  that  a  sale,  made  in  such  a  manner 
as  to  be  inoperative  under  the  then  existing  law,  will  realize 
a  fair  price.  Many  persons  must  be  deterred  from  bidding, 
because  they  know  or  suspect  that  the  sale  is  invalid.  He 
who  purchases  must  be  taken  to  act  with  his  eyes  open,  and 
as  bidding  for  a  mere  chance,  rather  than  for  an  unquestion- 
able title.  All  this  is  equally  true,  whether  the  defect  be 
that  the  judgment  is  void,  or  that  the  sale  is  invalid  from 
some  other  vice.  He  whose  property  is  sacrificed  against 
his  will,  by  being  exposed  to  the  hazard  of  a  void  sale,  has, 
even  in  the  broad  rules  of  right  and  justice,  rights  as  sacred 
as  those  of  the  speculating  purchaser.  The  latter  is  a  mere 
volunteer,  risking  his  money  in  defiance  of  the  law.  lie  is 
not  imposed  on  in  any  manner,  nor  is  there  any  contract 
between  him  and  the  owner  of  the  property  to  urge  by  way 
of  estoppel.  But  if  an  execution  or  judicial  sale  be  void  at 
law,  it  is  usually  equally  void  in  equit}'.  The  purchaser 
has  no  title  which  is  recognized  in  any  prevailing  system  of 
law.     The  judgment  debtor  is  under  no  obligation  which 


'  Thornton  v.  McGrath,  1  Duv.  35.'). 


§    62  VOID    JUDICIAL,    SALES. 

will  warrant  any  court  in  compelling  him  to  convey  or  sur- 
render his  property   to   the   purchaser.     Why   should  not 
those  rights  which  confer  a  perfect   title  to  property,  both 
at  law  and  in  equity,  be  held  to  be  vested  rights'?     If  such 
rio-hts  are  not  vested,  then  what  additional  claim  to  protec- 
tion must  the  owner  of  property  have  before    his    rights 
become  vested?     Must  he  have  a  moral  right  or  title?  and, 
if  so,  what  does  the  word  moral   mean  in  this  connection? 
Has  it  some  definite   signification?  or  must  it,  for  all  the 
practical   purposes  of  litigation,  vary  so  as  to  correspond 
with   the    moral  perceptions  of  the  different  judges?     In 
pronouncing  the  opinion  of  the  SupremeCourt  of  California, 
in  an  action  wherein  an  heir  had  sued  to  recover  his  inher- 
itance, Mr.  Justice  McKinstry  very  forcibly  said:      "As  to 
any  vague,  indeterminate  and  indeterminable  'moral  equity,' 
if  any  such  exist,  it  may  well  be  doubted  whether  we  can 
recoo-nize  such,  since  the  courts  have  no  standard  by  which 
to    estimate    its  sufficiency  or  effectiveness.      Even  if  we 
could  adopt,  however,  the  measure  of  rights  suggested  by 
some  of  the  cases,  we  are  not  prepared  to  hold  that  the 
plaintiff  in    this   action  may  not  insist  upon  his  complete 
legal  and  equitable  title,  without  violating  any  principle  of 
moralitv.^     Admitting  that  the  estate  of  the  ancestor  comes 
to  the  heir  burdened  with  the  debts  of  the  former,  it  is  still 
the  right  of  the  latter,  when   courts  are   organized,  or  are 
required  by  the  constitution  to  be  organized,  for  the  settle- 
ment of  the  estates  of   decedents,  to  have  the  debts  ascer- 
tained and  the  property  applied  by  a  tribunal  of  competent 
jurisdiction.    And,  upon  any  theory,  the  doctrine  of  estop- 
pel, which  is  claimed  to  impose  an  imperfect  duty  capable 
of  being  ripened  into  a  perfect  obligation  by  the  legislative 
will,  can  have  no  application,  unless  a   party,  by  his  own 
contract  or  other  voluntary  act,  has  placed  himself  in  such 
an  attitude  that  it  would  be  a  violation  of  sound  morality 


8  Gill,  299. 

140 


VOID    JUDICIAL    SALES.  §   (32 

on  his  part,  for  him  to  adhere  to  and  insist  on  his  le<Tal  and 
equitable  rights.  It  ought  not  to  be  made  to  apply  to  this 
phiintiff  merel}'  because  he  was  a  party,  as  an  infant,  to  a 
pretended  legal  proceeding."^ 

1  Pryor  v.  Downey,  50  Cal.  403;  s.  c,  19  Am.  Rep.  656. 

141 


§  63  VOID   JUDICIAL   SALES. 


CHAPTER  VII. 


CONSTITUTIONALITY  OJ'   SPECIAL    STATUTES  AUTHORIZING 
INVOLUNTARY    SALES. 

SECTION. 

G3.  General  Nature  of  Legislative  Sale,  and  of  the  Statutes  under 
wbich  they  are  Made. 

04.  Of  the  rower  of  the  Legislature  to  Provide  for  the  Involuntary 
Sale  of  Property. 

65.  The  Constitutionality  of  Special  Laws  Authorizing  Sale  of  Prop- 
erty Denied. 

GO.  The  Constitutionality  of  Special  Laws  Authorizing  Sale  of  Prop- 
erty Sustained. 

67.  Acts   Authorizing   Sales    by    Administrators,    Constitutionality 

Affirmed. 

68.  On  Whom  Power  of  Sale  may  be  Conferred  by  Special  Acts. 
GO.    Of  Special  Acts  Authorizing  the  Sale  of  Lands  to  Pay  Debts. 

70.  Special  Act  need  not  Require  a  Bond  for  the  Application  of  the 

Proceeds. 

71.  Acts  Authorizing  the  Sale  of  the  Lands  of  Cotenants. 

72.  Decisions  Limiting  the  Power  of  Legislatures  to  Pass  Special 

Laws  for  the  Sale  of  Property. 

§  63.  General  Nature  of  Legislative  Sales  and  the 
Special  Acts  under  which  they  are  Made. — A  question 
very  closely  allied  with  judicial  sales,  is  that  of  involuntary 
sales  made  by  authority  of  the  legislature,  without  the 
assent  of  the  owner  of  the  property,  and  in  the  absence  of 
any  judicial  declaration  concerning  the  necessity  or  propri- 
ety of  the  sale.  Many  special  statutes  have  been  enacted 
purporting  to  confer  authority  on  guardians,  administrators, 

142 


VOID    JUDICIAL    SALES.  §   G4 

trustees  and  other  persons  to  sell  and  convey  the  estates  of 
their  wards,  or  of  minor  heirs,  or  of  cestuis  que  trust. 
Sometimes  entire  strangers  have  been  appointed  as  com- 
missioners and  invested  with  powers  of  sale.  Generally, 
in  statutes  of  this  character,  the  legislature  assumes  the 
■existence  of  a  state  of  facts,  making  a  sale  either  necessary 
or  expedient;  and,  therefore,  empowers  some  one  to  make 
a  sale,  either  according  to  his  discretion,  or  in  the  manner 
and  under  the  circumstances  designated  in  the  special 
statute.  Frequently  bonds  are  exacted  for  the  purpose  of 
avoiding  the  misappropriation  of  the  funds  to  be  realized. 
Often  a  report  of  the  sale  is  required  to  be  made  to  some 
judicial  tribunal.  The  functions  of  this  tribunal  are  usually 
restricted  to  inquiring  and  determining  whether  the  sale 
has  been  conducted  in  conformity  Avith  the  special  act. 
Whether  the  sale  be  required  to  be  confirmed  by  some  court 
or  not,  it  is  evident  that  the  authority  for  selling  is  purely 
legislative.  This  class  of  sales  may,  therefore,  be  styled 
*'  lejiislative  sales." 

§  64.  Of  the  Power  of  the  Legislature  to  Provide  for 
the  Involuntary  Sale  of  Property. — There  can  be  no  ques- 
tion of  the  authority  of  the  legislature,  by  general  laws, 
iind  in  proper  cases,  to  authorize  the  compulsory  alienation 
of  real  and  personal  property.  The  power  of  the  English 
parliament  is  absolute.  It  can  regulate  the  succession  to 
the  crown,  or  alter  the  established  religion  of  the  land. 
Theoretically,  at  least,  it  has  uncontrovertible  dominion 
over  both  persons  and  property.  Hence,  it  is  no  cause  for 
wo'nder  that  "  private  acts  of  parliament"  are  recognized 
as  among  the  "assurances  by  matter  of  record."  In  this 
country,  however,  the  legislature  of  every  State  possesses 
an  authority  much  more  restricted  than  that  of  parliament. 
In  none  of  our  courts  would  a  statute  purporting  to  take 
property  from  one  person  and  vest  it  in  another  be  treated 
with  any  respect.  The  constitutions  of  most,  and,  perhaps, 
of  all   of  our  States,  vest  the  legislative  and  the   judicial 

143 


§   64  VOID    JUDICIAL    SALES. 

functions  of  government  in  separate  tribunals,  and  forbid 
either  tribunal  from  encroacliing  upon  the  jurisdiction  of 
the  other.  Hence,  a  statute  professing  to  determine  the 
conflicting  claims  of  title,  would  be  as  inoperative  as  a 
statute  directly  transferring  title  from  one  person  to  another. 
But  every  legislature  possesses  powers  under  which  it  may 
enforce  the  collection  of  debts,  provide  for  the  management 
of  the  property  of  persons  incapable  of  caring  for  them- 
selves, and  also  for  the  partition  of  estates  held  in  coten- 
ancy. The  exercise  of  these  powers  often  involves  the 
compulsory  sale  of  property.  Before  a  debt  can  be  col- 
lected by  legal  compulsion,  its  existence  must  be  deter- 
mined. This  determination  can  be  made  only  by  some 
judicial  authority.  Hence,  a  statute  declaring  that  A  is 
indebted  to  B,  or  that  the  lands  of  A  shall  be  sold  to  pay 
the  debts  owing  from  him  to  B,  is  unquestionably  void, 
unless  the  legislature  enacting  it  was  competent  to  exercise 
judicial  functions,  or  the  existence  of  the  debt  from  A  to  B 
is  settled  by  some  judicial  tribunal.  So,  if  A  should  die, 
his  heirs  would  unquestionably  succeed  to  his  estate,  sub- 
ject to  the  right  of  his  creditors  to  enforce  their  claims 
against  the  estate ;  and  also  subject,  in  case  of  the  minority 
or  other  incapacity  of  the  heirs,  to  the  power  of  the  gov- 
ernment to  make  the  estate  contribute  to  their  education  or 
support.  But  the  existence  of  debts  against  A  could,  dur- 
ing his  lifetime,  be  established  only  by  judicial  inquiry. 
Does  this  inquiry  become  any  less  judicial  or  any  more 
legislative  in  its  nature  by  reason  of  A's  death?  So,  in  the 
event  that  the  minor  or  other  heirs  of  A  are  alleged  to  be 
in  circumstances  in  which  the  sale  of  their  estate  is  either 
essential  to  their  support,  or  highly  beneficial  to  their  inter- 
ests, the  truth  of  the  allegation  ought  to  be  determined  in 
some  manner;  and  this  determination,  if  it  does  not  invari- 
ably call  for  the  exercise  of  judicial  functions,  can  unques- 
tionably be  most  satisfactorily  accomplished  through  their 
aid.     Hence,  the  compulsory  sale  of  property    is   usually 

144 


VOID    JUDICIAL    SALES.  §   65 

governed  by  general  laws,  under  Avhicli  the  necessity  and 
expediency  of  the  sale  are  made  the  subject  of  judicial 
inquiry,  and  the  authority  to  proceed  depends  upon  the 
judgment  or  order  of  some  judge  or  court.  Any  de[)arture 
from  these  general  laws  is  fraught  with  great  danger,  and 
is  likely  to  result  in  inconsiderate  action,  if  not  in  unmiti- 
gated plunder.  Hence,  in  nearly  one-half  of  the  States  of 
this  union,  constitutional  provisions  directly  inhibit  special 
laws  licensing  the  sale  of  the  lands  of  minors  and  other 
persons  under  legal  disability.^ 

§  05.  The  Constitutionality  of  Special  Laws  for  the 
Sale  of  Property  Deniedi — In  those  States  whose  constitu- 
tions do  not  directly  forbid  the  enactment  of  special  laws 
authorizing  one  person  to  sell  the  property  of  another,  such 
laws  have,  when  drawn  in  question  before  the  courts,  been 
assailed:  1st,  as  contravening  the  spirit  of  constitutional 
provisions  requiring  all  laws  of  a  general  nature  to  have  a 
uniform  operation;  2d,  as  in  opposition  to  that  provision  of 
the  constitution  of  the  United  States,  which  is  also  incor- 
porated in  most  of  the  State  constitutions,  that  no  person 
shall  be  deprived  of  life,  liberty  or  property  without  due 
process  of  law  ;  ^  and,  3d,  as  involving  the  exercise  of 
judicial  functions  not  possessed  by  the  legislature. 

The  house  of  representatives  of  the  State  of  New  Hamp- 
shire, in  June,  1827,  asked  the  judges  of  the  supreme  court 
of  judicature  of  that  State,  the  following  question:  "  Can 
the  legislature  authorize  a  guardian  of  minors,  by  a  special 
act  or  resolve,  to  make  a  valid  conveyance  of  the  real  estate 


1  Cooley's  Const.  Lirn.,  3(1  ed.,  p.  107,  note. 

2 'J'his  provision  may  be  found  in  both  the  fifth  and  the  fomtecnth 
anieiidments  to  the  constitution  of  the  United  States.  As  eniijioyed  in 
the  former,  it  is  a  limitation  on  the  powers  of  the  general  irovernment 
only.  In  the  latter  amendmeiit,  it  is  designed  as  a  limitation  on  the 
powers  of  the  States.  Barion  v.  Mayor  of  Baltimore,?  l'«t.  --'i:};  Withers 
V.  Buckley,  20  How.  (U.  S.)  81;  United  States  v.  Cruikshauk,  ii'i  U.  S. 
542;  3  Cent.  L.  J.  205;  8  Ch.  L.  N.  233.  See  City  of  Portland  v.  City  of 
Bangor,  G5  Me.  120;  3  Cent.  L.  J.  ord. 

145 


§  65  VOID    JUDICIAL    SALES. 

of  his  wards?  "  The  judges  answered  as  follows:  "  The 
objection  to  the  exercise  of  such  a  power  by  the  legislature 
is,  that  it  is  in  its  nature  both  legislative  and  judicial.  It 
is  the  province  of  the  legislature  to  prescribe  the  rule  of 
law ;  but  to  apply  it  to  particular  cases  is  the  business  of 
the  courts  of  law.  And  the  thirty-eighth  article  in  the  bill 
of  rights  declares  that,  'in  the  government  of  this  State,  the 
three  essential  powers  thereof,  to-wit:  the  legislative,  execu- 
tive and  judicial,  ought  to  be  kept  as  separate  from,  and 
independent  of,  each  other  as  the  nature  of  a  free  govern- 
ment will  admit,  or  as  is  consistent  with  that  chain  of  con- 
nection that  binds  the  whole  fabric  of  the  constitution  in 
one  indissoluble  bond  of  union  and  amity.'  The  exercise 
of  such  a  power  by  the  legislature  can  never  be  necessary. 
By  the  existing  laws,  judges  of  probate  have  very  extensive 
jurisdiction  to  license  the  sale  of  the  real  estate  of  minors 
by  their  guardians.  If  the  jurisdiction  of  the  judges  of 
probate  be  not  sufficiently  extensive  to  reach  all  proper 
cases,  it  may  be  a  good  reason  why  that  jurisdiction  should 
be  extended,  but  can  hardly  be  deemed  a  sufficient  reason 
for  the  particular  interposition  of  the  legislature  in  an  indi- 
vidual case.  If  there  be  a  defect  in  the  laws  they  should 
be  amended.  Under  our  institutions  all  men  are  viewed  as 
equal,  entitled  to  enjoy  equal  privileges,  and  to  be  governed 
by  equal  laws.  If  it  be  fit  and  proper  that  license  should 
be  given  to  one  guardian,  under  particular  circumstances, 
to  sell  the  estate  of  his  ward,  it  is  fit  and  proper  that  all 
other  guardians  should,  under  similar  circumstances,  have 
the  same  license.  This  is  the  very  genius  and  spirit  of  our 
institutions.  And  we  are  of  opinion  that  a  particular  act 
of  the  leo-islature  to  authorize  the  sale  of  the  land  of  a  par- 
ticular  minor,  by  his  guardian,  cannot  be  easily  reconciled 
with  the  spirit  of  the  article  in  the  bill  of  rights  just  cited. 
"  It  is  true  that  the  grant  of  such  a  license  by  the  legisla- 
ture to  the  guardian  is  intended  as  a  privilege  and  benefit 
to  the  ward.    But,  by  the  law  of  the  land,  no  minor  is  capa- 

146 


VOID    JUDICIAL    SALES.  §   65 

ble  of  assenting  to  a  sale  of  his  rex\  estate  in  such  a  man- 
ner as  to  bind  himself.  And  no  guardian  is  permitted,  by 
the  same  law,  to  determine  when  the  estate  of  his  ward 
ought  and  when  it  ought  not  to  be  sold.  In  the  contem- 
plation of  the  law,  the  one  has  not  sufficient  discretion  to 
judge  of  the  propriety  and  expediency  of  the  sale  of  his 
estate,  and  the  other  is  not  to  be  intrusted  with  the  power 
of  judging.  Such  being  the  general  law  of  the  land,  it  is 
presumed  that  the  legislature  would  be  unwilling  to  rest  the 
justification  of  an  act  authorizing  the  sale  of  a  minor's 
estate  upon  any  assent  which  the  guardian  or  the  minor 
could  give  to  the  proceeding. 

"  The  question,  then,  is,  as  it  seems  lo  us,  can  a  ward  be 
deprived  of  his  inheritance,  without  his  consent,  by  an  act 
of  the  legislature,  which  is  intended  to  apply  to  no  other 
individual  ?  The  fifteenth  article  in  the  bill  of  rights  declares 
that,  no  subject  shall  be  deprived  of  his  property  '  but  by 
judgment  of  his  peers  or  the  law  of  the  land.'  Can  an  act 
of  the  legislature,  intended  to  authorize  one  man  to  sell  the 
land  of  another  without  his  consent,  be  'the  law  of  the 
land,'  within  the  meaning  of  the  constitution?  Can  it  be 
'  the  law  of  the  laud  '  in  a  free  country?  If  the  question 
proposed  to  us  can  be  resolved  into  these  questions,  as  it 
appears  to  us  it  may,  we  feel  entirely  confident  that  the 
representatives  of  the  people  of  this  State  will  agree  with 
us  in  the  opinion  we  feel  ourselves  bound  to  express  on  the 
question  submitted  to  us:  That  the  legislature  cannot 
authorize  the  guardian  of  minors,  by  a  special  act  or  resolve, 
to  make  a  valid  conveyance  of  the  real  estate  of  his  wards."' 

The  supreme  court  of  the  State  of  Tennessee,  in  the  year 
1830,  delivered  an  opinion  in  full  accord  with  that  of  the 
judges  of  New  Hampshire.  In  182'),  the  legislature  of  the 
first  named  State  passed  an  act  authorizing  the  guardians 
of  certain  minors  therein  specified  to  sell  certain  lands  iii 


1  Opinion  of  the  .Judges,  4  X.  II.  'ui. 

147 


§   Gd  VOID    JUDICIAL    SALES. 

the  best  manner  they  could,  and  declaring  that  the  assets  to 
be  produced  by  such  sale  should  be  assets  for  the  payment 
of  the  debts  of  the  ancestor  of  the  minors.  Under  this  act 
a  sale  was  made.  Some  years  afterwards  a  bill  was  brought 
by  the  minors  against  the  grantee  of  the  purchaser,  to 
recover  possession  of  the  lands  sold,  and  also  for  an  account- 
ing for  the  rents  and  profits.  The  legislative  sale  was 
adjudged  void,  because  it  deprived  the  minors  of  their  prop- 
erty without  due  process  of  law,  and  because  the  act  pur- 
porting to  authorize  it  was  a  usurpation  of  the  authority  of 
the  judiciary.^ 

§  66.  The  Constitutionality  of  Special  Laws  Author- 
izing- Sales  Sustained. — Notwithstanding  the  decisive  stand 
taken  by  the  courts  of  New  Hampshire  and  Tennessee 
against  special  statutes  authorizing  sales  by  guardians,  such 
statutes  have  been  sustained  in  other  States  so  frequently, 
and  in  such  varying  circumstances,  that  their  constitution- 
ality is  now  almost  free  from  doubt.  In  1792,  Asaph  Eice, 
by  a  resolve  of  the  general  court  of  the  commonwealth  of 
Massachusetts,  was  authorized  to  sell  and  convey  certain 
real  estate,  of  which  he  was  tenant  by  courtesy,  and  of  which 
his  children  were  seized  in  fee  of  the  remainder  expectant 
on  the  death  of  their  father.  A  sale  was  made  by  virtue  of 
the  authority  conferred  by  this  resolve.  After  the  death  of 
the  father,  the  children,  by  a  writ  of  entry,  sought  to 
recover  their  inheritance.  Parker,  C.  J.,  delivered  the 
opinion  of  the  court,  in  the  course  of  which  he  said:  "  If 
the  power  by  which  the  resolve  authorizing  the  sale  in  this 
case  was  passed  were  of  a  judicial  nature,  it  would  be  very 
clear  that  it  could  not  have  been  exercised  by  the  legisla- 
ture without  violating  an  express  provision  of  the  constitu- 
tion. But  it  does  not  seem  to  us  to  be  of  this  description 
of  power;  for  it  was  not  a  case  of  a  controversy  between 
party  and  party:    nor  is  there  any  decree  or   judgment 

1  Jones  V.  Perry,  10  Yerg.  59;  s.  c,  30  Am.  Dec.  430. 

14« 


VOID    JUDICIAL    SALES.  §   GQ 

affecting   the  title  to  property.     The  only  object  of  the 
authority  granted  by  the  legislature,  was  to  transmute  real 
into  personal  estate,  for  purposes  beneficial  to  all  who  were 
interested  therein.     This  is  a  power  frequently  exercised 
by  the  legislature  of  this  State,  since  the  adoption  of  the 
constitution,  and  by  the  legislatures  of  the  province  and  of 
the   colony  while  under  the  sovereignty  of  Great  Britain, 
analogous  to  the  power  exercised  by  the  British  parliament, 
time  out  of  mind.     Indeed,  it  seems  absolutely  necessary 
for  the  interest  of  those  who,  by  the  general  rules  of  law, 
are  incapacitated  from  disposing  of  their  property,  that  a 
power  should  exist  somewhere  to  convert  lands  into  money. 
For,  otherwise,  minors  might  suffer,  although  having  prop- 
erty* it  not  being  in  a  condition  to  yield  an  income.     This 
power  must  rest  in  the  legislature  of  this  commonwealth, 
that  body  being  alone  competent  to   act   as   the   general 
guardian  and  protector  of  those  who  are  disabled  to  act  for 
themselves.      It   was    undoubtedly    wise    to   delegate   the 
authority  to  other  bodies,  whose   sessions  are   regular  and 
constant,  and  whose  structure  may  enable  them  more  easily 
to    understand   the   merits   of   the  particular    apjjlications 
brought  before  him.     But  it  does  not  follow  that,  because 
the  power  has  been  delegated  by  the  legislature  to  courts  of 
law,  it  is  judicial  in  its  character.     For  aught   we  see,  the 
same  authority  might  have  been  given  to  the   selectmen  of 
each  town,  or  to  the  clerks  or  registers  of  the  counties,  it 
being  a  mere  ministerial  act,  certainly  requiring  discretion, 
and  sometimes  knowledge  of  the  law  for  its  due  exercise, 
but  still  partaking  in   no  degree  of  the  characteristic  of 
judicial  power.     No  one  imagines  that,  under  this  general 
authority,  the  legislature  could  deprive  a  citizen  of  his  estate, 
or  impair  any  valuable  contract  in  which  he  might  be  inter- 
ested.    But  there  seems  to  be  no  reason  to  doubt  that,  upon 
his  application,  or  the  application  of  those  who  pro|Hu-ly 
represent  him,  if  disabled  from  acting  hinisclf,  a  beneficial 
change  of  his  estate,  or  a  sale  of  it  for  purposes  necessary 

149 


§   66  VOID    JUDICIAL    SALES. 

and  convenient  for  the  lawful  owner,  is  a  just  and  proper- 
subject  for  the  exercise  of  that  authority.  It  is,  in  fact,, 
protecting  him  in  his  property,  while  the  legislature  is 
bound  to  do,  and  enabling  him  to  derive  subsistence,  com- 
fort and  education  from  property  which  might  otherwise  be 
wholly  useless  during  that  period  of  life  when  it  might  be 
most  beneficially  enjoyed. "^  If  it  be  conceded  that  an 
infant,  lunatic  or  other  person,  incompetent  to  act  for  him- 
self, is  in  need  of  ready  money  for  his  sustenance,  or  for 
any  other  pressing  necessity,  of  course  the  conversion  of 
his  estate  into  money  would  be  authorized  by  any  tribunal 
having  competent  authority.  Legislative  licenses  author- 
izing a  sale  under  such  circumstances  are  generally  sus- 
tained.^ Nor  is  any  necessity  required  to  support  tine 
exercise  of  this  legislative  authority.  It  seems  to  be  suffi- 
cient that  the  sale  is  one  to  which  the  incompetent  person 
might,  if  sui  Jur'is,  probably  give  his  assent.  Hence,  a 
special  statute  may  be  supported  if,  without  any  apparent 
necessity,  it  sanctions  the  conversion  of  real  into  personal 
estate.  This  conversion  is  presumed  to  be  beneficial  to  the 
minor,  or,  at  least,  not  to  be  a  destruction  of  his  rights  of 
property.^  Acts  have  been  sustained  which  authorized 
guardians  to  convey  lands  sold  by  the  ancestor  of  their 
wards;*  or  which  empowered  the  guardian  of  a  lunatic  to  sell 
the  lands  of  the  latter  to  pay  oif  an  incumbrance  thereon  ;^ 
or  which  authorized  guardians  to  convey  real  estate 
for  the  purpose   of  effecting  a   compromise   with  persons 


1  Rice  V.  Pai-kman,  16  Mass.  329,  82  Am.  Dec.  148. 

2  Stewart  v.  Griffith,  33  Mo.  23;  Davidson  v.  Koehler,  76  Ind.  412; 
Hoyt  V.  Sprague,  103  U.  S.  613. 

a  Carroll  v.  Olmstead,  16  Ohio,  251;  Dorsey  v.  Gilbert,  11  G.  &  J.  87; 
Davis  V.  Helbig,  27  Md.  452;  92  Am.  Dec.  646;  Thurston  v.  Thurston,  6 
R.  I.  296;  Snowhill  v.  Suowhill,  3  N.  J.  Eq.  20;  Brenham  v.  Davidson, 
51  Cal.  352;  Soheir  v.  Mass.  Geu'l  Hospital,  3  Gush.  483;  Norris  v. 
Clymcr,  2  Pa.  St.  284;  Clark  v.  Van  Surlay,  15  Wend.  436. 

*  Estep  V.  Hutchman,  14  S.  &  R.  435. 

s  Davison  v.  Johonot,  7  Met.  388;  S.  C,  41  Am.  Dec.  448. 

150 


VOID    JUDICIAL    SALES.  §   67 

claiming  adversely  to  the  minors. ^  The  case  last  cited 
determined  the  constitutionality  of  an  act  passed  by  the 
legislature  of  Missouri  in  the  year  1847.  This  act  recited 
that  certain  adverse  claims  existed  to  a  tract  of  land  in  the 
city  of  St.  Louis;  that  the  parties  in  interest  had*  agreed 
upon  a  compromise,  to  accomplish  which  mutual  deeds  of 
quit-claim  were  essential ;  and  then  the  act  authorized  the 
guardians  of  designated  minors  to  execute  the  conveyances 
necessary  to  consummate  the  compromise.  Such  a  convey- 
ance was  executed,  and  was  upheld,  though  it  was  subse- 
quently ascertained  that  the  minor's  title  was  valid,  and  that 
of  the  adverse  claimants  unfounded — the  court  savinu: 
"It  is  a  question  of  power,  and  whilst  it  is  conceded  that 
the  legislature  has  no  power  to  transfer  A's  property  to  B, 
or  to  authorize  anj^one  else  to  do  so — supposing  A  and  B  to 
be  adults  and  competent  to  transact  their  own  affairs — the 
legislature  may  authorize  the  guardian,  father  or  mother  of 
a  lunatic,  infant  or  idiot,  to  transfer  the  estate  of  the  minor, 
lunatic  or  idiot.  It  will  be  observed  that  the  title  of 
Pelagie,  and  her  daughter  Antoinette,  was  a  disputed  one. 
That  the  claimants  under  Mackay  and  Rutgers,  really  had 
no  valid  title,  is  not  important.  This  was  ascertained  after 
the  decision  of  this  court,  in  the  case  of  Norcum  v.  D'Oeuch, 
but  it  was  a  matter  of  conjecture  before.  The  adults  had 
an  undoubted  right  to  compromise.  If  the  legislature  has 
power  to  authorize  third  persons,  guardians,  fathers,  moth- 
ers, etc.,  to  convey  the  undisputed  title  of  an  infant,  with- 
out regard  to  insuring  the  proceeds  for  the  benefit  of  the 
infant,  why  should  they  be  deprived  of  the  right  to  author- 
ize the  compromise  of  an  unsettled  claim?  "  ^ 

§  67.  Acts  Authorizing  Sales  by  Administrators;  Con- 
stitutionality of,  Affirmed. — Tlie  cases  cited  in  tiic  preced- 
ing section  affirmed  the  constitutionality  of  laws  authorizing 
sales  to  be   made  by  the  guardians  or  parents  of  persons 


1  Thomas  v.  Pullis,  50  Mo.  217. 

2  Ibid. 


151  (11) 


§    67  VOID    JUDICIAL    SALES. 

incapable  of  acting  for  themselves.  We  shall  now  refer  to 
cases  involving  the  legislative  delegation  of  a  like  authority 
to  administrators.  The  weight  of  the  authorities  is  to  the 
effect  that  the  power  may  be  conferred  on  an  administrator 
as  well  as  on  a  parent  or  guardian. ^  In  considering  the 
validity  of  a  sale  made  under  an  act  of  this  character,  the 
Supreme  Court  of  the  United  States  said:  "On  principle, 
this  process  is  sustainable.  On  the  death  of  the  ancestor, 
the  land  owned  by  him  descends  to  his  heirs.  But  how  do 
they  hold  it?  They  hold  it  subject  to  the  payment  of  the 
debts  of  the  ancestor,  in  those  States  where  it  is  liable  to 
such  debts.  The  heirs  cannot  alien  the  lands  to  the  preju- 
dice of  the  creditors.  In  fact  and  in  law  they  have  no 
right  to  the  real  estate  of  their  ancestors,  except  that  of 
possession,  until  the  debts  shall  be  paid.  As  it  regards  the 
question  of  power  in  the  legislature,  no  objection  is  per- 
ceived to  their  subjecting  the  lands  of  the  deceased  to  the 
payment  of  his  debts,  to  the  exclusion  of  his  personal 
property.  The  legislature  regulates  descents  and  the  con- 
veyance of  real  estate.  To  define  the  rights  of  debtor  and 
creditor,  is  their  common  duty.  The  whole  range  of  reme- 
dies lies  within  their  province.  They  may  authorize  a 
guardian  to  convey  the  lands  of  an  infant;  and,  indeed, 
they  may  give  capacity  to  the  infant  himself  to  convey 
them.  The  idea  that  the  lands  of  an  infant  which  have 
descended  to  him,  cannot  be  made  responsible  for  the  pay- 
ment of  the  debts  of  the  ancestor,  except  through  a  decree 
of  a  court  of  chanceiy,  is  novel  and  unfounded.  So  far 
from  this  being  the  case,  no  doubt  is  entertained  that  the 
legislature  of  a  State  have  the  power  to  subject  the  lands 
of  a  deceased  person  to  execution  in  the  same  manner  as  if 

1  Doe  V.  Douglas,  8  Blackf.  10;  s.  c,  44  Am.  Dec.  732;  Kibby  v.  Chit- 
wood.  4  Mon.  91 ;  s.  C,  16  Am.  Dec.  143;  Williamson  v.  Williamson,  3 
S.  &  M.  715,  745;  s.  C,  41  Am.  Dee.  636;  Gannett  v.  Leonard,  47  Mo. 
205;  Holman's  Heirs  V.  Bank  of  Norfolk,  12  Ala.  369,  415;  Herbert  v. 
Herbert,  Breese,  354;  s.  C,  12  Am.  Dec.  192;  Todd  v.  Flournoy,  56  Ala. 
99;  28  Am.  Rep.  758;  Watson  v.  Gates,  58  Ala.  647;  Tindal  v.  Drake,  60 
Ala.  170. 

152 


VOID   JUDICIAL   SALES.  §   i>8 

he  were  livinij.  The  mode  in  which  this  shall  be  done  is  a 
question  of  policy,  and  rests  in  the  discretion  of  the  legisla- 
ture. The  law  under  which  the  lot  in  dis])ute  was  sold, 
decides  no  fact  binding  on  creditors  or  heirs.  If  the 
admiuistratix  and  Brown  have  acted  fraudulently  in  pro- 
curing the  passage  of  this  act,  or  in  the  sale  under  it,  relief 
may  be  given  on  that  ground.  But  the  act  does  nothing 
more  than  provide  a  remedy,  which  is  strictly  within  the 
power  of  the  legislature."^ 

§  68.  On  Whom  Power  of  Sale  may  be  Conferred  by 
Special  Acts. — It  does  not  appear  to  be  necessary  that  the 
person  authorized  by  a  special  act  of  the  legislature  to  sell 
the  property  of  another  should  be  an  administrator  or 
guardian  by  regular  appointment  of  the  courts  of  the  State 
where  the  sale  is  to  be  made,  nor,  indeed,  that  he  should 
have  any  official  character  whatever,  nor  that  he  should  be 
a  relative  of  the  person  for  whom  he  is  authorized  to  act. 
His  authorit}"  rests  on  the  special  act,  and  not  on  his  other 
relations  with  the  incompetent  person.  The  legislature  of 
the  State,  wherein  the  land  lies,  may  authorize  its  sale  and 
conveyance  by  an  administrator  residing  and  appointed  in 
another  State  or  by  his  attorneys.-  In  Kentucky,  an  act 
was  sustained  which,  after  reciting  that  no  one  would  admin- 
ister upon  the  estate  of  a  deceased  person,  appointed  three 
commissioners  with  power  to  sell  so  much  of  such  estate  as 
would  be  necessary  to  pay  his  debts. ^  An  act  of  the  legis- 
lature of  California,  approved  May  6,  1861,  purported  to 
authorize  Mary  Ann  Paty  Daley,  the  mother  and  guardian 
of  Francis  William  Paty,  a  minor,  to  sell  any  or  all  of  his 
real  estate.  In  November,  prior  to  the  passage  of  this  act, 
Mrs.  Daley  had  been  appointed  guardian  of  her  son  by  the 
probate  judge  of  Plymouth  county,  in  the  State  of  Massa- 
chusetts. In  May,  1856,  she  received  a  like  appointment 
from  the  chief  justice  of  the   Hawaiian  Islands.     She  was 

1  Watkins  v.  Holman,  16  Pet.  02. 

2  Holman's  Heirs  V.  Bank  of  Norfolk,  12  Ahi.  MO,  41');  Watkins  v. 
Holman,  IC  Pet.  25;  Boon  v.  Bowers,  30  Miss.  240;  (14  Am.  Der.  IT)!). 

3  Shehan's  Heirs  v.  Burnett's  Heirs,  0  Mon.  503, 

153 


§    68  VOID    JUDICIAL    SALES. 

never  appointed  guardian  in  California.  She  made  sales 
and  conveyances  under  this  act.  These  sales  were  declared 
void,  not  on  the  ground  that  the  statute  was  unconstitu- 
tional, but  because  she  had  never  been  appointed  guardian 
in  California.  "The  statute,"  said  the  court,  "does  not 
purport,  in  any  part  of  it,  to  nominate  Martha  Ann  Paty 
Daley  guardian  of  the  infant ;  it  simply  assumes  that  she 
is,  or — when  the  sale  shall  be  made — wnll  be  guardian  of  his 
estate;  exercising  the  ordinary  functions,  and  charged  with 
the  ordinary  responsibilities  of  guardians.  The  power  was 
given  to  her  in  her  capacity  as  guardian,  and  not  as  an  indi- 
vidual; as  she  failed  to  secure  an  appointment  as  guardian, 
the  attempted  sale  was  void."^  Frequently  property  is 
vested  in  trustees  for  the  benefit  of  persons  incapable  of 
acting  for  themselves.  When  this  is  the  case,  the  legisla- 
ture may  authorize  sales  and  conveyances  to  the  same  extent 
as  when  property  is  in  the  hands  of  administrators  or  guard- 
ians. In  1802,  Mary  Clark  devised  certain  lands  to  Ben- 
jamin Moore,  and  two  other  persons,  in  trust:  1st,  to 
receive  the  rents,  issues  and  profits  thereof,  and  pay  the 
same  to  Thomas  B.  Clarke  during  his  life;  2d,  after  the 
death  of  Thomas  B.  Clarke,  to  convey  the  premises  to  his 
lawful  issue  in  fee  ;  3d,  if  he  should  not  have  lawful  issue, 
then  to  convey  the  premises  to  Clement  C.Moore.  In  1814, 
the  legislature,  upon  the  petition  of  Thomas  B.  Clarke,  and 
with  the  concurrence  of  the  trustees  named  in  the  will,  and 
of  Moore,  the  contingent  remainderman,  passed  an  act 
authorizing  the  sale  of  a  portion  of  the  real  estate  for  the 
purpose  of  creating  an  income  for  the  benefit  and  support 
of  Thomas  B.  Clarke,  his  family  and  children ;  the  princi 
pal,  after  his  death,  to  be  paid  according  to  the  trusts  in 
the  will  of  Mary  Clarke.  In  1815,  a  further  act  was  passed 
reciting  that  Moore,  the  contingent  remainderman,  had  con- 
veyed his  interest  to  Thomas  B.  Clarke,  and  "authorizing 
Clarke  to  do  and  perform  every  act  in  relation  to  the  prop- 
erty, which  the  act  of  1814  had  directed  might  be  performed 

1  Paty  V.  Smith,  50  Cal.  159;  Mc^STeil  v.  First  Coug.  Society,  4  W.  C. 
Rep.  424;  66  Cal.  105. 

154 


VOID    JUDICIAL    SALES.  §    ^^^ 

by  trustees  to  be  a})pointed  by  the  chancellor;   but  no   .-ale 
was  to  be  made  by  Clarke  until  he  procured  the  assent  of 
the  chancellor;  and    when  a  sale   was   made,  the  proceeds 
were  to  be  invested,  and  an  annual  account  of  ihQ principal 
rendered,  but  the  interest  Clarke  was  authorized  to  apply  to 
his  own  use  and  benefit,  and  for  the  maintenance  and  educa- 
tion of  his  children.'''     Sales  were  made   under  these  acts. 
The  constitutionality    of  these   acts  was   discussed    in    the 
hiirhest    courts    of  the   State  and   of  the  nation,  ami  was 
always  sustained.     It  was  held:     1st,  that  it  was  competent 
for  the  legislature  to  change  the  trustees  appointed   by  the 
will  of  Mrs.  Clarke,  and  to  vest  their  powers  in  Thomas  B. 
Clarke;   2d,  that  it  was  equally  within  the  power  of  the  leg- 
islature to  provide  for  the  sale  of  the  interest  of  the  children 
of  Clarke,  in  order  that  they  might  at  once  have  the  benefit 
of  the  estate  for  their  better  support  and  education  during 
the  most  helpless  period  of  their  lives. ^    The  litigation  aris- 
ing under  the  will  of  Mrs.  Clarke  and  these  special  acts  of 
the  legislature  was  carried  on,  in  various  courts  and  forms, 
durino-  nearlv  half  a  century;   and  has  occasioned  the  most 
exhaustive  discussions,  both  of  the  power  of  the  legislatures, 
by  special  acts,  to  authorize  the  sale  of  the  property  of  per- 
sons incapable  of  acting  for  themselves,  and  of  the  nature 
and  effect  of  such  sales  ^vhen  conducted  under  the  super- 
vision of  judicial  authority.-    The  power  which  is  competent 
to  change  trustees  and  provide  for  the  sale  of  proi)erty  in 
which  infants  are  interested,  can  deal   with   like  efficiency 
with  property  given  for  the  purposes  of  charity  ;^  or  which 
is  vested  in    trustees,  or   other  persons,  for  the  benefit  of 
persons  not  iji  esse.^ 

1  Clarke  v.  Van  Surlay,  15  Wend.  436;  Leggett  v.  Hunter,  ION.  Y.  445. 

2  Clarke  v.  Van  Surlay,  15  Wend.  43G;  Sinclair  v.  Jackson,  8  Cowen, 
543;  Cochran  v.  Van  Surlay.  20  Wend.  365;  s.  c,  32  Am.  Dec.  570;  Wil- 
liamson V.  Berry,  S  How.  (U.  S.)  405;  Towlo  v.  Forney,  14  N.  Y.  423; 
Williamson  v.  I.  P.  Congregation,  8  How.  (U.  S.)  505;  Suydam  v.  Wil- 
liamson, 24  How.  (U.  S.)  427;  Williamson  v.  Ball,  S  How.  (U.  S.)  506; 
Williamson  v.  Suydam,  6  Wall.  723. 

3  Matter  of  Trustees  N.  Y.  P.  E.  Pub.  School,  31    N.  Y.  502. 

*  Matter  of  Bull,  45  Barb.  334;  Leggett  v.  Hunter,  in  N.  Y.  J 15. 

1.55 


§    68  VOID    JUDICIAL    SALES. 

In  the  case  of  Lincoln  v.  Alexander, ^  the  defendants 
sousjht  to  maintain  their  right  to  the  possession  of  real 
property  which  had  been  distributed  to  plaintiffs  by  the 
probate  court,  by  proving  a  sale  to  them  by  the  plaintiff's 
mother,  acting  under  the  authority  of  a  special  statute 
directino;  her  to  make  such  sale,  and  to  retain  and  use  the 
proceeds  for  the  maintenance  of  plaintiffs  who  were  then 
minors.  It  appeared  that,  prior  to  the  enactment  of  such 
statute,  the  stepfather  of  the  minors  had  been  appointed 
their  guardian,  and  had  assumed  the  management  and  taken 
possession  of  their  estates.  The  plaintiffs  recovered  chiefly, 
we  presume,  on  the  ground  that  while  there  is  a  guardian 
fully  competent  to  act,  the  legislature  cannot,  by  special 
statute,  divcbt  him  of  his  powers,  or  some  portion  thereof, 
and  confer  them  on  some  other  person,  though  there  are 
intimations  in  the  opinion  that  the  sale  of  the  propert}^  of 
minors  cannot  be  authorized,  in  the  absence  of  special  cir- 
cumstances, not  here  shown  to  exist.  The  court  said: 
'*In  Brendham  v.  Davidson,-  the  statute  which  was  under 
review  in  that  case,  conferred  the  power  of  sale  on  the 
guardian  of  the  minor,  and  the  sale  was  to  be  approved  by 
the  probate  court.  The  proceeds  of  the  sale  were  to  be 
reinvested  for  the  benefit  of  the  minor;  and,  moreover,  no 
sale  was  to  be  made  unless  the  mother  of  the  minor,  who 
held  an  undivided  interest  in  the  property,  united  in  the 
sale  and  conveyance.  Under  these  circumstances,  we  held 
that  the  case  was  one  not  provided  for  by  the  general  law, 
to  authorize  the  real  estate  of  the  minor  to  be  converted  into 
money  by  the  guardian,  if  the  probate  court  approves  the 
sale.  But,  in  the  case  at  bar,  the  minors  had  a  duly -quali- 
fied and  acting  statutory  guardian  at  the  time  of  the  passage 
of  the  special  act,  and  the  general  law  provided  an  appro- 
priate method  by  which  the  probate  court  could  order  a 
sale  of  the  real  estate  of  the  minors  by  the  guardian,  if  a 
sale  was  necessary  for  their  education  and  support.  The 
special  act  conferred  the  power  of  sale,  not  upon  theguard- 

1  52  Cal.  485;  s.  C,  28  Am.  Kep.  639. 

2  51  Cal.  352. 

156 


VOID   JUDICIAL    SALES  §   *^>8 

kn,  but  upon  the  mother  of  the  minors,  who  was  not   their 
guarduiu,  and  had  no  interest  in  the  property.     Nor  were 
any  conditions  imposed  upon  her,  except  that  she  should 
first  execute  a  bond,  to  be  approved  by  the  probate  judge, 
conditioned  that  the  proceeds  of  the  sale  should  be  appro- 
priated to  the  support  and  educations  of  the  minors;  and 
that  the  sale  should  not  be  valid   unless  confirmed  by  the 
probate  court  previous  to  the  execution   of  the   deed.     In 
treating  of  the  rights  and  powers  of  statutory  guardians  of 
the   estate    of   minors,    Mr.    Schouler,    in   his    treatise    on 
Domestic    Relations    (p.    471),    says:       'The    recognized 
principle  is,  that  such  guardians  have  an  authority  coupled 
with  an  interest,  not  a  bare  authority;'  and  such  we  under- 
stand to  be  the  well  settled  rule.     The  statute  under  con- 
sideration, attempts  to  take  the  estate  of  the  minors  out  of 
the  hands  of  their  guardian,  and  to  withdraw  it  from  the 
control  of  the  probate  court,  which,  under  the  general  law, 
had  ample  authority  to  order  it  be  sold,  and  the  proceeds  to 
be  applied  to  the  support  and  education  of  the  minors.     It 
wholly  ignores  the  rights  and  powers  of  the   guardian,  who 
had  an  authority  coupled  with  an  interest;  withdraw^s  the 
estate    from  the  jurisdiction  and   control  of  the    probate 
court,  which  that  court  might  rightfully  exercise  under  the 
general  law ;   and  attempts  to  substitute  another  person  for 
the  guardian,  with  authority  to  dispose  of  the  estate  abso- 
lutely, on  no  other  condition  than  those  already  mentioned. 
Ko  adjudicated   case    has  been   called  to  our  attention,  in 
which  the  exercise  of  such  a  power  by  the  legislature  has 
been  upheld.     In  his  work   on  Constitutional  Limitations, 
at  page  98,  Judge  Cooley,  in  discussing  legislation  of  this 
character,    says:      'The    rule    upon    this    subject,    as    we 
deduce  it  from  the  authorities,  seems  to  be  this:      If  the 
party  standing  in  the  position  of  trustee,  applies  for  per- 
mission to  make  the  sale,  for  a  purpose  apparently  for  the 
interest  of  the  cestui  que   trust,  and  there  are  no  adverse 
interests  to  be  considered  and  adjudicated,  the  case   is  not 
one  which  requires  judicial  action;   but  it  is  optional  »vith 

157 


§    69  VOID    JUDICIAL    SALES. 

the  legislature  to  grant  the  writ  by  statute,  or  to  refer  the 
case  to  the  courts,  for  consideration,  according  as  the  one 
course  or  the  other,  or  considerations  of  policy,  may  seem 
desirable.'  But,  in  the  present  case,  it  does  not  appear 
that  the  application  was  made  by  a  party  'standing  in  the 
position  of  trustee,'  and  there  were  'adverse  interests  to 
be  considered  and  adjudicated,'  to-wit:  those  of  the  guard- 
ian. Upon  the  face  of  the  act  there  is  nothing  to  show 
that  the  legislature  was  informed  that  a  general  guardian 
of  the  estates  of  these  infants  had  actually  been  appointed. 
It  is  fairly  to  be  presumed  that  they  were  ignorant  of  that 
fact.  At  all  events,  in  view  of  the  facts  now  found  by  the 
court  below,  the  act  cannot  be  permitted  to  operate,  since, 
under  the  circumstances,  it  would  be  judicial  and  not  legis- 
lative in  its  character,  and  for  that  reason  unconstitutional." 
§  69.  Of  Special  Acts  Authorizing  the  Sale  of  Lands 
to  Pay  Debts. — As  the  estate  of  an  ancestor  descends  to  his 
heirs,  subject  to  the  light  of  the  creditors  of  the  former  to 
compel  such  estate  to  contribute  to  the  payment  of  their 
claims,  a  special  act  to  authorize  the  sale  of  property  for 
the  payment  of  such  claims  seems  to  be  one  of  the  most 
defensible  acts  of  special  legislation;  and  so  it  is,  if  the 
validity  and  existence  of  the  claims  be  conceded.  But 
special  acts  to  raise  funds  for  the  payment  of  debts  have 
been  more  persistently  and  plausibly  assailed  than  acts  for 
any  other  purpose  short  of  ostensible  confiscation.  If  such 
an  act  is  so  expressed  as  to  preclude  the  parties  in  interest 
from  disputing  the  validity  of  the  debts,  it  is  unquestionably 
void,  because  it  is  a  usurpation  of  judicial  authority.  In 
1827,  the  legislature  of  Illinois,  by  a  special  act,  authorized 
John  Lane  to  sell  so  much  of  the  lands  of  the  late  Christo- 
pher Robinson,  deceased,  as  should  prove  sufficient  to  raise 
the  sum  of  $1,008.87,  and  interest  and  cost  of  sale.  The 
proceeds  of  the  sale  were  to  be  applied  to  the  extinguish- 
ment of  the  claims  of  said  Lane  and  one  John  Brown  for 
moneys  advanced  and  liabilities  incurred  on  account  of 
Robinson's  estate.     This  act  was  held  to  be  clearly  beyond 

158 


VOID    JUDICIAL    SALES.  §   tU) 

the  authority  of  the  legislature,  because  the  existence  of 
the  indebtedness  from  Robinson's  estate  to  Brown  and 
Lane,  and  the  consequent  right  of  Brown  and  Lane  to  sat- 
isfaction out  of  the  proceeds  of  the  estate,  could  only  be 
ascertained  as  the  result  of  a  judicial  investigation,  which 
the  legislature  was  incompetent  to  conduct.  The  act  was 
also  thought  to  contravene  the  constitutional  provision,  that 
"no  freeman  shall  be  disseized  of  his  freehold,  but  by  the 
judgment  of  his  peers,  or  the  law  of  the  land."  ^  The 
Supreme  Court  of  Illinois  has  now  taken  a  position  far  in 
advance  of  that  assumed  in  the  case  just  cited,  and  will  not 
tolerate  any  special  legislation  authorizins:  the  conveyance 
of  real  estate  to  pay  debts,  unless  such  debts  have  first 
been  judicially  established.  In  1823,  the  legislature  of  that 
State  authorized  John  Rice  Jones,  admmistrator  of  Thomas 
Brady,  deceased,  to  sell  and  convey  lands,  the  proceeds  to 
be  assets  in  the  hands  of  the  administrator,  to  be  appropri- 
ated to  the  payment  of  the  debts  of  the  deceased,  and  the 
balance,  if  any,  to  be  distributed  among  his  children.  Of 
this  act,  and  a  sale  made  by  its  authority,  the  court  said  : 
"When  the  act  in  question  was  passed,  and  when  the  land 
was  sold,  the  title  was  in  the  heirs  of  Brady,  subject  to  be 
divested,  if  necessary,  for  the  payment  of  his  debts.  But 
the  legislature  had  no  more  right  or  power  to  assume  that 
he  died  owing  debts,  and,  on  that  assumption,  to  authorize 
his  administrator  to  sell  lands  vested  in  his  heirs  for  the 
purpose  of  holding  the  proceeds  as  assets,  without  any 
judicial  inquiry  as  to  the  existence  of  such  debts  before 
executing  the  power,  than  it  would  have  had,  in  his  life- 
time, the  right  or  power  to  authorize  the  sheriff  of  the 
county  where  he  lived  to  sell  his  land,  and  hold  the  pro- 
ceeds for  the  payment  of  whatever  debts  he  might  owe."- 
The  conclusion  here  announced  is  one  which,  upon  principle, 
meets  our  full  concurrence.     But  we  understand  the  dci-ided 

1  Lane  V.  Dorman,  3  Scam.  238;  s.  c,  3G  Am.  Dec.  543;  followinl  iu 
Dubois  V.  McLean,  4  McLean,  486. 

2  Rozier  v.  Fagan,  46  111.  405;  Davenport  v.  Young,  16  Hi.  548;  8.  c, 
63  Am.  Dec.  320. 


§    71  VOID    JUDICIAL    SALES. 

preponderance  of  the  authorities  to  be  in  favor  of  sustain- 
ing special  acts  authorizing  sales  for  the  payment  of  the 
debts  of  the  deceased  owner  of  property,  even  in  advance 
of  the  judicial  ascertainment  of  such  debts,  provided  the 
act  leaves  the  existence  of  such  debts  open  to  inquiry. ^ 

§  70.  Special  Act  need  not  Require  a  Bond  for  the 
Application  of  the  Proceeds. — Special  acts,  authorizing 
the  sale  by  one  person  of  the  property  of  another,  generally 
contain  precautionary  provisions  tending  to  secure  the  hon- 
est exercise  of  the  authority  conferred.  Bonds  are  usually 
exacted,  conditioned  for  the  proper  appropriation  of  the 
proceeds  of  the  sale.  By  this  means,  the  interests  of  heirs 
and  creditors  are  exempted  from  needless  peril.  These 
precautions  seem  not  to  be  essential  to  the  validity  of  the 
act.  The  question  is  one  of  power.  The  existence  of  the 
power  being  established,  the  propriety  of  its  exercise  rests 
solely  with  the  legislature.  If,  through  misplaced  confi- 
dence or  reckless  inattention  to  the  duties  of  its  trust,  the 
legislature  confers  the  power  of  sale  on  a  person  who,  being 
required  to  furnish  no  security,  squanders  the  proceeds  of 
the  sale,  and  thus  defrauds  the  heirs  of  their  inheritance 
and  the  creditors  of  their  means  of  enforcing  payment,  the 
sale  is  not,  on  that  account,  invalid .- 

§    71.   Acts  for  the  Sale  of  Lands  of  Co-Tenants The 

power  of  the  legislature  to  authorize,  by  general  laws,  the 
sale  of  the  lands  of  co-tenants  for  the  purposes  of  partition, 
where  the  necessity  of  the  sale  is  judicially  determined,  is 
unquestionable.^  So  there  is  little  or  no  doubt  of  the  con- 
stitutionality of  a  special  act  authorizing  a  co-tenant  to 
petition  a  court  of  competent  jurisdiction  for  the  sale  of 
the  lands  of  a  co-tenancy,  and  also  authorizing  the  court, 
upon  being  satisfied  that  a  division  of  the  property  among 

1  Watkins  v.  Holman,  16  Pet.  25;  Davison  v.  Johonnot,  7  Met.  388; 
S.  C.,41Am.  Dec.  448;  Shehan's  Heirs  v.  Barnett's  Heirs,  6  Mon.  593; 
Holman's  Heirs  v.  Bank  of  Norfolk.  12  Ala.  369 ;  Kibby  v.  Chitwood,  4 
Mou.  91;  s.  C,  16  Am.  Dec.  143;  Williamson  v.  Williamson,  3  S.  &  M. 
715.  745;  s.  C,  41  Am.  Dec.  636. 

2  Gannett  v.  Leonard,  47  Mo.  205;  Thomas  v.  PuUis,  56  Mo.  218. 

3  Freeman  on  Cotenancy  and  Partition,  540. 

160 


VOID    JUDICIAL    SALES.  §71 

the  co-tenants  is  extremely  difficult,  if  not  inipnicticable,  to 
order  a  sale  of  the  premises  and  a  division  of  the  proceeds 
among  the  parties  in  interest. ^  Such  an  act  leaves  the 
necessity  and  expediency  of  the  sale  to  be  determined  by 
the  judiciary.  Special  acts  which  do  this  are  free  from 
constitutional  objections,  except  in  those  States  whose  con- 
stitutions forbid  special  legislation.-  In  Pennsylvania, 
an  act  was  sustained  which  empowered  one  of  several 
heirs,  without  the  aid  of  any  judicial  proceedings,  to  sell 
the  lands  descended  from  their  common  ancestor,  and  divide 
the  proceeds  among  the  co-heirs  ;^  and  a  decision  similar 
in  spirit  has  been  made  in  Massachusetts.* 

The  courts  of  the  State  of  Connecticut  seem  to  have  gone 
further  than  any  other  in  sustaining  the  authority  of  the 
legislature  to  divest  persons  of  })roperty  by  sales  made 
against  their  will,  and  without  any  ascertained  or  suggested 
necessity  therefor.  Thus,  where  a  devise  was  made  to  H, 
for  life,  and  upon  her  death  to  other  persons,  in  certain 
contingencies,  H,  while  in  possession  as  tenant  for  life, 
petitioned  the  general  assembly,  praying  for  a  sale  of  the 
property  and  showing  that,  while  the  property  was  worth 
about  $4,000,  it  produced  a  net  income  of  only  $100,  a 
year.  The  general  assembly  by  resolution,  directed  the 
sale  of  the  lands  by  certain  trustees,  and  the  investment  by 
them  of  the  proceeds  for  the  benefit  of  the  parties  accord- 
ing to  their  respective  interests.  The  trustees  were  about 
to  proceed  under  the  act  when  the  contingent  remaindermen 
sought  to  prevent  their  so  doing  by  suing  out  an  injunction. 
The  injunction  was  denied  by  the  Supreme  Judicial  Court 
which,  in  its  opinion,  said:  "It  is  said  by  the  petitioners 
that  this  resolution  deprives  them  of  their  interest  in  the 
property  against  their  will,  and  is  therefore  void,  not  only 
as  opposed  to  natural  justice,  but  as  in  conllicl  with 
the  provisions   of  the  constitution  of  this   State.     It    was 

1  Edwards  v.  Popes,  3  Scam.  40.'>. 

2  Florentine  v.  Barton,  2  Wall.  210. 

•5  Fullerton  v.  McArthur,  1  Grant's  Cas.  232. 
*  Soneir  v.  Mass.  Gen'l  Hospital,  3  Cush.  483. 

i(;i 


§    71  VOID    JUDICIAL    SALES. 

held  by  this  court  in  the   case  of  Richardson  v.  Monson/ 
that  the  statute  which  authorizes  the  sale  of  lands  held  in 
joint  tenacy,  tenacy  in  common,  or   coparcenary,  whenever 
partition  cannot  be  conveniently  made  in  any  other  way,  is 
constitutional.     That  case  was  ably   discussed   by  counsel, 
who  offered  the  same  arguments  against  the  constitutionality 
of  the  statute,  which  have  been  urofed  upon  our  considera- 
tion against  the  validity  of  this  resolution.     It  is  difficult  to 
see  any   distinction   in  principle  between    the    two    cases. 
When  a  sale  is  made  of  real  estate  held   in  joint  tenancy, 
the  tenant  opposed  to  the  sale  is  as  much   deprived   of    his 
estate  by  the  change  which  is  made  as  these  petitioners  are 
of  their  property,  by  the  change  authorized  by  this  resolu- 
lution.     In  either  case,  the  parties  are  not  subjected    to   a 
loss  of  their  property.     It  is  simply  changed  from  one  kind 
of  estate  to  another.    In  the  case  of  Sohier  v.  Massachusetts 
General  Hospital,^  the  court  say  in  a  case  like  the  present: 
The  legislature   authorizes  the  sale,  taking  care  that  the 
proceeds  shall  go  to  the  trustees  for  the  use  and  benetit  of 
those  having  the  life   estate,  and  of  those   having  the  re- 
mainder, as  they  are  entitled  under  the  will.     This  is  de- 
priving no  one  of  his  property,  but  is  merely  changing  real 
into  personal  es'tate,  for  the  benefit  of  all  parties   in    inter- 
est.      This   part  of  the  resolve,  therefore,   is   within    the 
scope  of  the  powers  exercised  from  the  earliest  times,  and 
repeatedly  adjudged  to  be  rightfully  exercised   by  the  leg- 
islature.     In    the   case  of  Rice  v.  Parkman,^  it  was   held 
that  the  legislature  might  rightfully  authorize  a  tenant  for 
life  to  sell  the  whole  estate,  thus  converting  real  into  per- 
sonal property,  provision  being  made  for  securing  the  in- 
terests of  those  in  remainder.     We  think  the  decision  in 
the  case  of  Richardson  v.  Monson,  which  we  have  referred 
to,  must  be  regarded  as  decisive   of  this  case.     We  think 
the  resolution  in  question  constitutional,  and   not   opposed 
to    natural  justice,   and  we  therefore  advise  the  superior 

1  23  Conn.  9. 

2  3  Cush.  496. 

3  16  Mass.  326. 

162 


VOID    JUDICIAL    SALES.  §   72 

court  to  dismiss  the  petition. "^  It  will  be  seen  from  the 
foregoing  quotation  that  the  court  relied  very  contidently 
on  prior  decisions  made  by  the  courts  of  Massachusetts. 
But  the  statutes  sustained  in  Massachusetts  authorized  the 
sale  of  the  estates  of  minor  remaindermen  who  were  in- 
competent to  act  for  themselves,  and,  in  this  respect,  we 
think  a  very  substantial  difference  exists  between  those 
cases  and  that  in  Connecticut  where  there  was  no  suoro-es- 
tion  that  the  contingent  remaindermen  were  under  any  dis- 
ability or  not  fully  competent  to  act  for  themselves. 

§  72.  Decisions  Limiting  the  Power  of  Legislatures  to 
Pass  Special  Laws  for  the  Sale  of  Property. — We  shall 
now  call  attention  to  decisions  which,  though  pronounced 
l)y  courts  which  concede  the  power  of  a  legislature  to  pass 
special  acts  authorizing  the  sale  of  propert}^  prescribe 
limits  beyond  which  the  power  is  not  recognized.  In  1831, 
Thomas  Poole  devised  his  real  estate  to  his  executors  in 
trust:  1st,  to  permit  his  daughter,  Eliza,  to  occupy  the 
same,  and  take  the  rents  and  profits  thereof  during  her 
natural  life;  2d,  upon  her  death,  the  lands  were  to  vest  in 
her  lawful  issue,  and,  in  default  of  such  issue,  then  in  all 
the  testator's  surviving  grandchildren.  By  special  acts, 
passed  in  1837  and  1849,  the  executors  were  authorized  to 
sell  and  convey  the  real  estate,  and,  with  the  proceeds,  to 
pay  all  charges  and  assessments  against  the  lands,  and  also 
the  costs  of  sales  and  commissions.  The  surplus  was  then 
to  be  disposed  of  in  the  manner  specified  in  the  will  for  the 
disposition  of  the  real  estate.  A  sale  was  made  under  these 
acts.  A  case  was  then  agreed  upon  and  submitted,  for  the 
purpose  of  ascertaining  whether  the  purchaser  could  acquire 
a  valid  title.  It  appeared  that  the  daughter,  Eliza,  was 
still  living,  and  that  she  had  two  children.  The  act  was 
held  unconstitutional,  upon  grounds  which  are  not  stated  in 
the  opinion  of  the  court,  with  suflicient  clearness  to  enable 
us  to  feel  confident  that  we  correctly  understand  them.  We 
judge,  however,  that  the  reasoning  controlling  the  decision 

1  Linsley  v.  Hubbard,  44  Conu.  100;  2G  Am.  Rep.  431. 

1G3 


§    72  VOID    JUDICIAL    SALES. 

of  the  court  was  substantially  this:  No  necessity  existed 
for  the  sale;  there  were  no  charges,  liens  or  assessments 
against  the  property ;  and  no  infancy  or  other  necessity 
shown  as  to  the  parties  interested  under  the  will  ;  and  that, 
under  these  circumstances,  the  acts  authorized  the  taking 
of  property  from  one  person  and  transferring  it  to  another 
without  any  reason.^  Whether  the  children  of  Eliza,  "who 
had  a  vested  remainder  in  fee,  in  the  premises  in  question, 
as  tenants  in  common,  subject  to  open  and  let  in  after-born 
issue  of  their  mother,  as  tenants  in  common  with  them,  and 
liable,  however,  to  be  divested  by  their  deaths  during  the 
life-time  of  their  mother,"  were  minors  or  adults,  the 
report  of  the  case  very  singularly  omits  to  mention.  The 
following  reasoning  of  the  court,  in  this  case,  tends  very 
strongly  toward  the  overthrow  of  all  legislation  authorizing 
the  transfer  of  the  property  of  one  person  by  another, 
without  any  imperative  necessity,  and  without  the  assent  of 
the  owner:  "If  the  power  exists  to  take  the  property  of 
one,  without  his  consent,  and  transfer  it  to  another,  it  may 
as  well  be  exercised  without  making  any  compensation  as 
with  it ;  for  there  is  no  provision  in  the  constitution  that 
just  compensation  shall  be  made  to  the  owner  when  his 
property  shall  be  taken  for pi'ivate  use.  The  power  of 
making  contracts,  for  the  sale  and  disposition  of  private 
property  for  individual  owners,  has  not  been  delegated  to 
the  legislature  or  to  others,  through  or  by  any  agency  con- 
ferred on  them  for  such  purpose  by  the  legislature;  and  if 
the  title  of  A  to  property  can,  without  his  fault  or  consent, 
be  transferred  to  B,  it  may  as  well  be  effected  without  as 
with  consideration."  ^ 

In  California,  it  is  settled  that  the  legislature  cannot 
authorize  an  administrator  to  sell,  at  his  discretion,  the 
lands  of  his  intestate,  as  in  his  judgment  will  best  promote 
the  interest  of  those  entitled  to  the  estate.  In  this  case, 
the  heirs  of  the  deceased  consisted  of  his  widow  and  minor 

1  Powers  V.  Bergeu,  6  X.  Y.  35S.     See  Leggett  v.  Hunter,  19  N.  Y 
445. 

2  Powers  V.  Bergeu,  6  X.  Y-  367. 


VOID    JUDICIAL    SALES.  §    72 

children.  We  make  the  following  quotations  from  the 
opinion  of  the  court:  "It  is  undoubtedly  within  the  scope 
of  legislative  authority  to  direct  that  the  debts  be  paid  from 
the  realty  instead  of  the  personal  property  ;  or,  as  is  done 
in  some  States,  that  the  heir  need  not  be  made  a  party  to 
the  proceeding  to  obtain  a  sale  of  the  real  estate,  or  that 
the  administrator  may  sell  without  any  order  of  the  court 
whatever.  But  all  these  acts  must  be  for  the  satisfaction 
of  these  liens,  which  are  held  to  be  paramount  to  the  claims 
of  the  heirs  or  devisees. 

"Laws  which  prescribe  the  manner  in  which  these  para- 
mount claims  shall  be  satistied,  are  held  to  be  entirely 
remedial ;  and  it  is  upon  this  ground  that  the  courts  have 
upheld  acts  authorizing  the  administrator  to  sell  at  private 
sale,  or  in  some  mode  not  provided  in  the  general  law,  the 
hmd  of  a  deceased  person.  Such  acts  have  been  uniformly 
held  valid  where  it  appeared  to  be  in  execution  of  these 
liens,  and  the  act  was  not  liable  to  the  objection  that,  in 
passing  it,  the  legislature  usurped  judicial  functions;  as,  for 
instance,  in  directing  a  sale  to  pay  a  particular  debt, 
thereby  ascertaining  the  existence  of  a  debt  by  legislative 
enactment. 

"In  all  the  cases  to  which  our  attention  has  been  called 
by  the  plaintiff,  the  decision  was  put  upon  this  ground.  The 
duty  of  an  administrator  is  to  take  charge  of  the  estate  for 
the  purpose  of  settling  the  claims,  and  when  they  have  been 
satisfied,  it  is  his  duty  to  pass  it  over  to  the  heir,  whose 
absolute  property  it  then  becomes.  To  allow  the  adminis- 
trator to  sell,  to  promote  the  interest  of  those  entitled  to 
the  estate,  would  be  to  pass  beyond  the  functions  of  an 
administrator,  and  constitute  him  the  forced  agent  of  the 
livinir  for  the  management  of  their  estates. 

"In  this  case  it  does  not  appear,  from  the  proceedings  in 
the  probate  court  upon  the  sale,  that  there  were  any  tklits 
of  the  deceased  at  the  time  of  the  sale,  \u\v  does  it  appear 
that  the  sale  was  to    raise  money   for   the   supi)ort    of    llic 

amily,    or  to  \n\y  the  expenses   of  administrat icn.       I'Ih- 


§72  VOID    JUDICIAL    SALES. 

special  act  does  not  purport  to  authorize  a  sale  for  the  pay- 
ment of  the  debts,  allowances  to  the  family,  or  expenses  of 
administration.  On  the  contrary,  it  expressly  authorizes  a 
sale,  for  the  purpose  of  speculating  in  the  interest  of  the 
owners  of  the  property — that  is,  the  heirs.  It  provides 
that  the  administrator  may  sell,  at  his  discretion,  'the  whole 
or  any  part  of  the  real  estate,  or  any  right,  title  or  interest 
therein  claimed,  held  or  owned  by  the  said  Charles  White, 
at  the  time  of  his  death,  as  in  the  judgment  of  the  admin- 
istrator will  best  promote  the  interest  of  those  entitled  to 
the  estate.'  The  probate  judge  may  confirm  or  set  aside 
the  sale,  as  he  may  deem  just  and  proper,  and  for  the  best 
interests  of  the  estate. 

"Upon  the  death  of  the  ancestor  the  heir  becomes  vested 
at  once  with  the  full  property,  subject  to  the  liens  we  have 
mentioned  ;  and,  subject  to  these  liens,  and  the  temporary 
right  of  possession  of  the  administrator,  he  may  at  once 
sell  and  dispose  of  the  property,  and  has  the  same  right  to 
judge  for  himself  of  the  relative  advantages  of  selling  or 
holding  that  any  other  owner  has.  His  estate  is  indefeasi- 
ble, except  in  satisfaction  of  these  prior  liens,  and  the  leg- 
islature has  no  more  right  to  order  a  sale  of  his  vested 
interest  in  his  inheritance,  because  it  will  be,  in  the  estima- 
tion of  the  administrator  and  the  probate  judge,  for  his 
advantage,  than  it  has  to  direct  the  sale  of  the  property  of 
any  other  person  acquired  in  any  other  way.  *  *  It  is 
not  contended  that  the  legislature  has  the  power  to  direct 
the  sale  and  conveyance  of  private  property  for  other  than 
public  uses.  This  question  was  fully  considered,  however, 
by  us  in  Sherman  v.  Buick,^  and  decided  in  the  negative, 
and  that  conclusion  is  fully  sustained  by  the  numerous 
authorities  cited  by  the  defendant."^ 

We  are  unable  to  concur  with  the  Supreme  Court  of 
California  in  the  opinion  foreshadowed  in  Brenham  v.  Story, 
and  adopted  in  Brenham   v.  Davidson,^  that  the   power  of 

1  32  Cal.  241 ;  91  Am.  Dec.  577. 

2  Brenham  v.  Story.  39  Cal.  185. 

3  Brenham  V.  Davidson,  51  Cal.  352. 

166 


VOID    JUDICIAL    SALES.  §    72 

the  legislature  to  confer  authority  on  guardians  is,  where 
the  person  in  interest  are  not  sui  jiwis,  any  more  ample 
than  its  power  to  confer  like  authority  in  a  like  ease  on 
administrators.  If  the  legislature  has  the  power  to  author- 
ize sales,  we  cannot  conceive  that  it  is  limited  in  the  choice 
of  agents  to  execute  the  power.  It  is  true  that  the  duties 
of  administrators  and  guardians  are  somewhTit  diffident 
under  the  general  laws  in  force  in  most  of  the  States.  But 
when  a  special  act  is  passed,  the  power  to  be  exercised  is 
delegated  and  prescribed  by  the  special  act,  and  not  by  the 
general  law.  The  power  of  the  agent  is  not,  therefore, 
limited  by  the  fact  that,  before  the  passage  of  the  act,  he 
was  an  administrator,  and',  as  such,  had  no  authority,  under 
the  general  law,  to  make  a  sale  when,  in  his  discretion,  he 
thought  best.  Special  acts  authorizing  sales  are  maintain- 
able, if  at  all,  because,  in  the  language  of  Chancellor  Wal- 
worth: "It  is  within  the  power  of  the  legislature,  as  parens 
patrice,  to  prescribe  such  rules  and  regulations  as  it  may 
deem  proper  for  the  superintendence,  disposition  and  man- 
agement of  the  property  and  effects  of  infants,  lunatics 
and  other  persons  who  are  incapable  of  managing  their  own 
affairs."!  If  the  persons  interested  in  an  estate  are  thus 
incapable,  we  see  no  reason  why  the  power  of  disposing  of 
their  estate  may  not  be  delegated  to  an  administrator,  or 
even  to  a  stranger,  as  well  as  to  the  guardian.  The  two 
California  cases  last  cited  are,  therefore,  irreconcilable  in 
principle,  and  one  or  the  other  ought  to  be  overruled:  for, 
in  each. case,  the  legislature  authorized  a  sale  to  be  made 
without  the  assent  of  the  owner  of  the  property,  and  in  the 
absence  of  any  disclosed  necessity  therefor.  In  each  case 
the  person  designated  by  the  legislature  was  invested  with 
a  discretion  to  make  the  sale  as  he  might  deem  best,  except 
that,  in  the  one  case,  he  was  instructed  to  promote  the  intrr- 
est  of  those  interested  in  the  estate,  while  in  the  othci-,  no 
such  instruction  was  given.  And  yet  the  latter  was  nplicld 
and  the  former  suffered  to  fall,  and  this    upon    the  ground 

1  Cochran  v.  Van  Surlay,  20  Wend.  :{7:J;  s.  c,  Wl  Am.  I )<•»•.  r>7U. 

IC?  (1:-M 


§    72  VOID    JUDICIAL    SALES. 

that  in  the  one  ca^e  the  person  selected  by  the  special  act 
was  a  guardian,  and  in  the  other,  he  was  an  administrator. ^ 
In  the  case  of  a  guardian's  sale,  the  persons  whose  property 
is  to  be  sold  are  wathin  the  reason  of  the  rule,  as  stated  by 
Chancellor  Walworth.  In  the  case  of  a  sale  by  an  admin- 
istrator, the  heirs  may  or  may  not  be  within  the  reason  of 
the  rule  as  thus  stated.  If  all  the  owners  of  the  property 
are  not  suijui'is,  and  are,  therefore,  within  the  reason  of 
the  rule,  then  the  sale  should  be  sustained,  whether  the 
agent  selected  by  the  legislature  be  an  administrator  or  a 
guardian,  or  have  no  other  official  capacity  than  that  given 
him  by  the  act.  If,  on  the  other  hand,  any  of  the  owners 
be  sui  Juris,  the  sale  must  fall,  if  made  against  his  will, 
whether  the  agent  appointed  to  make  it  is  a  guardian  or  an 
administrator.  Persons  regarded  in  law  as  capable  of  con- 
ducting their  own  affairs,  are  entitled  to  act  for  themselves. 
They  are  the  sole  judges  of  the  advisabilit}'  of  selling  their 
property.  The  legislature  cannot,  against  their  will, 
empower  any  other  person  to  sell  and  convey  (heir  interests, 
even  though  infants,  or  persons  not  in  esse  have  estates  and 
interests  in  the  same  parcels  of  property .- 

1  See  Breuham   v.  Davidson,  51   Cal.  352;  Brenhani   v.  Story,  39  Cal. 
185. 

2  Brevoort  v.  Grace,  53  N.   Y.  245;  Shoenberger  v.  School  Directors, 
32  Pa.  St.  34. 

168 


L\1)EX. 

[The  references  are  to  sections.] 

A. 

ACQUIESCENCE, 

estoppel  arising  fro'u,  43. 

ADMINISTRATION, 

grant  of,  when  void,  2. 

on  estate  of  living  person,  4. 

ADMINISTRATOR, 

with  will  annexed,  cannot  exercise  discretionary  power,  9. 

acting  also  as  guardian,  17. 

sale  to,  or  to  attorney  of,  33. 
ADMINISTRATORS  AND  EXECUTORS, 

if  appointment  of  is  void,  a  sale  by,  is  equally  so,  2, 10. 

new,  cannot  be  appointed  without  removing  old,  T. 

validity  of  acts  of  administrator,  how  affected  by  subsequent  probate  ot 
will,  4. 

when  may  make  sales  without  leave  of  court,  9. 

must  qualify  before  acting,  10. 

purchase  by,  at  their  own  sales,  33. 

purchase  by  attorney  of,  33. 

authority  of,  is  limited  to  state  where  appointed,  10. 

sale  by  foreign,  10. 

conveyances  by,  4G. 

convejances  by,  when  void  because  not  in  proper  form,  47. 

conveyances  bj',  when  compelled  or  reformed  in  equity,  65. 

constitutionality  of  acts  ratifjing  sales  by,  56-62. 

constitutionality  of  special  acts  authorizing  sales  by,  without  order  of  court, 
63-72. 

ADVERSE  POSSESSION, 

does  not  make  judicial  or  execution  sale  of  realty  void,  38. 

APPRAISEMENT, 

sale  without,  whether  void,  27. 

ATTACHMENT, 

judgment  based  on,  3. 

AUCTION, 

failure  to  sell  at,  32. 

sale  at,  when  no  by-standers  are  present,  32. 

B. 

BID, 

when  and  by  whom  may  be  made,  82. 

non  payment  of,  41. 

release  from,  because  of  defects  in  the  proceedings,  48. 

release  from,  because  of  defects  in  the  title,  48. 

resisting  payment  of,  48. 

BOND, 

failure  to  give,  held  fatal  to  probate  sale,  22. 

1()9 


INDEX. 

^• 

CLASSIFICATION, 

of  void  sales,  1. 
COLLATERAL  ATTACKS, 

on  jurisdiction  of  probate  courts,  4,  8. 

on  jurisdiction  of  courts  generally,  8. 

none  allowed,  to  show  error  or  fraud  in  granting  order  of  sale,  14,  20. 

COLLUSION, 

whether  presumed  because  no  third  persons  were  present  at  the  sale,  32. 

CONFIRMATION  OF  SALE, 
notice  of  motion  for,  42. 
necessity  of,  iS. 

conveyance  without,  is  void,  43. 
presumption  of,  43. 

ratification  of  sales  never  confirmed  by  court,  43. 
precludes  future  objections  by  purchaser's  to  title,  48. 
failure  of  clerk  to  enter  order  of,  43. 

■effect  of,  as  an  adjudication,  44.  ' 

what  irregularities  are  waived  by,  44. 
does  not  validate  void  sales,  44. 

may  be  made  to  a  person  substituted  in  place  of  original  bidder,  44. 
fraud  may  be  shown  notwithstanding,  44. 
by  subsequent  legislation,  56,  62. 

CONSTITUTION  OF  UNITED  STATES, 
prohibition  of  ex  post  facto  laws,  62. 

prohibition  of  laws  impairing  obligations  of  contracts,  62. 
protection  of  vested  rights,  and  of  life,  liberty  and  property,  62. 

CONSTITUTIONALITY, 

of  laws  taking  property  from  one  person  and  giving  it  to  another,  56. 

of  laws  revoking  and  annulling  prior  grants,  56. 

of  laws  confirming  judgments  irregularly,  entered,  57. 

of  laws  confirming  void  judgments,  58. 

of  laws  confirming  sales  void  for  informalities,  59,  60. 

of  laws  confirming  sales  void  for  fraud.  60. 

of  general  laws  authorizing  compulsory  sales,  64. 

of  special  laws  authorizing  involuntary  sales  denied,  65. 

of  special  laws  authorizing  involuntary  sales  sustained,  66,  67. 

of  special  laws  authorizing  sale  by  person  not  a  guardian,  68. 

of  special  laws  authorizing  sale  of  property  to  pay  debts,  69. 

of  special  laws  authorizing  sale  of  property  of  co-tenants,  71. 

of  special  laws  authorizing  sale  of  property,  limitations  on,  72. 

CONVEYANCES, 

are  essential  to  transfer  of  legal  title,  45. 

within  what  time  may  be  made,  46. 

made  before  payment  of  purchase  money,  46. 

to  persons  not  authorized  to  receive,  are  void,  46. 

by  officer  or  his  deputy  after  expiration  of  his  official  term,  46. 

who  may  make,  46. 

to  whom  may  be  made,  46. 

description  in,  sufficiency  of  and  how  construed,  47. 

when  void  because  not  in  proper  form,  47. 

mistaken  recitals  do  not  make  void,  47. 

compelling,  in  equity,  55. 

reforming,  in  equity,  55. 

special  statutes  authorizing,  66. 

170 


INDEX. 

COUNTY, 

division  of,  what  oflicer  may  sell  after,  29. 
CURATIVE  STATUTES, 

validity  of,  under  constitution  of  United  States,  56,  62. 

with  reference  to  irregular  judicial  proceedings,  67. 

with  reference  to  void  judicial  proceedings,  ~>8. 

with  reference  to  various  informalities  and  defects,  59,  6<). 

with  reference  to  sales  void  for  fraud,  59. 

limitations  on  operation  o',  61. 

D. 

DEFINITIONS, 

of  execution  sale,  1. 
of  judicial  sale,  1. 
of  jurisdiction,  1. 
of  legislative  sales,  63. 
of  vested  rights,  61. 

DESCRIPTION, 

in  judgment  and  deed  cannot  be  reformed,  55. 
in  order  of  sale,  11,  20. 

DISQUALIFIED  JUDGE, 
acts  of,  when  void,  G. 

E. 

EQUITY, 

when  will  subrogate  purchaser  to  claims  discharged  through  his  purchase, 
51  53. 

when  will  give  purchaser  lien  for  his  purchase  money,  52,  53. 

cannot  aid  defective  execution  of  statutory  powers,  55. 

cannot  correct  mistakes  in  execution  of  statutory  powers,  55. 

may  compel  the  execution  of  a  proper  conveyance,  55. 

may  sometimes  reform  conveyancesmadeby  sheriffs,  administrators, etc., 55 
EQUITY  SALES, 

caveat  emptor,  whether  the  rule  of,  48. 
ESTOPPKL, 

against  avoiding  sales,  50. 

EXECUTION  SALES, 

defined,  1. 

irregularities  in,  are  not  ordinarily  fatal,  21. 

without  issue  of  any  writ,  are  void,  23. 

must  be  supported  by  a  valid  writ,  23. 

under  writ  issued  on  satisfied  judgment,  23,  note. 

under  writ  issued  at  an  impnjper  time,  24. 

under  writ  issued  after  death  of  a  party,  24. 

under  writ  issued  after  abolition  of  the  court,  2.S,  note. 

under  writ  issued  before  judgment  is  rendered,  24. 

under  writ  issued  on  transcript  of  justice's  judgment,  24. 

under  writ  insufiielent  in  form,  20. 

variances  not  fatal  to,  25. 

without  levy,  26. 

without  inquisition  or  appraisement,  27. 

whether  void  for  want  of  notice,  28. 

by  whom  may  be  made,  29. 

when  may  be  mad^s  30. 

where  may  be  made,  31. 

must  be  at  auction,  32. 

171 


INDEX. 

EXECUTION  SALES— Continued. 

where  there  are  no  hy-standers,  32. 

to  or  for  officer  conducting  the  sale,  33. 

for  too  great  an  amount,  34. 

of  property  not  subject  to  sale,  is  void,  35. 

of  property  of  a  stranger  to  the  writ,  is  void,  35. 

of  property  in  adverse  possession,  38. 

made  en  wosse,  whether  void,  39, 

effect  of  fraudulent  devices,  40,  41. 

confirmation  of,  43. 

rights  of  purchaser,  when  sale  Is  void,  51,  52. 

curing  defects  in,  by  subsequent  legislation,  56()2. 

EXECUTION,  WRITS  OF, 
necessity  for,  23. 
when  may  issue,  24. 
form  of,  25. 
variance  in,  25. 

EXEMPT  PROPERTY, 
sale  of,  when  void,  35. 

F. 

FORMALITY', 

which  may  be  dispensed  with  by  subsequent  statute,  60. 

FRAUD  OF  PURCHASERS, 

whether  it  makes  their  title  void  or  voidable  merely,  40. 
not  to  injure  innocent  persons,  41. 

confirmation  of  sale  does  not  preclude  inquiry  as  to,  44. 
destroys  their  equitable  right  to  subrogation,  54. 
sale  void  for,  cannot  be  validated  by  legislature,  59. 


G. 

GUARDIAN, 

when  may  sell  property  without  leave  of  court,  9. 

application  in  wi-ong  county  for  order  to  sell,  10. 

foreign,  sale  by,  10. 

sale  by,  said  to  be  in  rem,  15. 

cannot  waive  service  of  citation  on  his  wards,  17. 

appointment  of,  when  void,  17. 

cannot  represent  conflicting  interests,  17. 

consent  of,  to  sales,  17. 

acting  also  as  administrator,  17. 

failing  to  give  bond,  but  accounting  for  proceeds,  22. 

sale  to,  or  in  interest  of,  33. 

special  statutes  authorizing  sales  by,  65,  66-72. 

special  statutes  validating  sales  by,  56-62. 

H. 

HEIRS  AND  DEVISEES, 

nature  of  their  interests,  56,  67. 

constitutionality  of  special  statutes  authorizing  sales  of  their  property,  63  72. 

HOMESTEAD, 

sale  of,  when  void,  35. 

172 


INDEX. 

I. 

INCOMPETENT  PERSON;?, 

legislature  mity  authorize  sale  of  their  property  by  special  statutes,  66. 

legislature  may    authorize  conveyance  of  their  property  by  special  stat- 
utes, 60. 
INQUISITION, 

sales  without,  held  void,  27. 
IRREGULARITIES  IN  SALES, 

general  effect  of,  21. 

made  fatal  by  statute,  22. 

what  cured  by  confirmatioi),  45. 

what  cured  by  special  curative  statutes,  57,  59-60. 

J. 
JUDICIAL  PROCEEDINGS, 

effect  ol,  when  void,  2. 

are  void  unless  court  has  jurisdiction,  2,  3. 

are  void  if  judge  has  no  authority  to  act,  6. 

jurisdictional  inquiries  concerning,  S. 

collateral  attacks  upon,  8, 14,  20. 

acts  interfering  with,  retiospectively,  57. 

acts  ratifying  irregular,  57. 

acts  ratifying  void,  58. 
JUDICIAL  SALE  -, 

defined,  1. 

irregularities  in,  not  usually  fatal,  21. 

effect  of  want  of  notice  of,  28. 

by  whom  may  be  made,  29. 

at  what  time  may  be  made,  ;^0. 

at  what  place  may  be  made,  31. 

failure  to  make  at  auction,  32. 

to  or  for  persons  incompetent  to  bid,  33. 

lor  too  great  an  amount,  34. 

must  be  confirmed  by  court,  43. 

right  of  purchasers  at  void,  to  subrogation,  51-53. 

special  statutes  confirming  and  validating,  56-62. 
JUDGMENT, 

satisfied,  sale  under,  23  note. 

not  yet  rendered,  sale  under,  24. 

variance  between,  and  execution,  2'i. 
JURISDICTION, 

defined,  2. 

effect  ol  want,  2. 

how  obtained,  3,  5. 

instances  of  want  of,  in  probate  courts,  4. 

not  presumed  in  favor  of,  4. 

finding  of  court  in  favor  of  its  own  jurisdiction,  4. 

over  non-residents,  3. 

over  property  in  another  state,  4. 

loss  or  suspension  of,  7. 

loss  ol,  by  action  of  court  of  concurrent  jurisdiction,  7. 

how  acquired  over  plaintiffs,  5. 

how  acquired  over  defendants,  5. 

how  acquired  in  pioceedings  in  rem,  5. 

how  acquired  In  proceedings  in  probate,  5. 

presumptions  concerning,  8. 

general  rules  governing  inquiries  concerning,  H. 

proceedings  void  for  want  of,  cannot  be  validated,  58. 

17a 


INDEX. 

L. 

LEGISLATIVE   SALES, 
described,  63. 

general  nature  of  statutes  authorizing,  63. 
general  remarks  concerning  power  to  authorize,  64. 
constitutionality  of  statutes  authorizing,  denied,  66. 
constitutionality  of  statutes  authorizing,  afflrmed,  66. 
by  guardians,  66. 
by  administrators,  67. 

by  trustees,  foreign  administrators  and  others,  68. 
to  pay  specific  debts,  69. 
misapplication  ot  proceeds  of,  70.  • 

by   person    other   than  guardian,   while  there    is    a    regularly    appointed 

guardian,  68. 
of  lands  of  co-tenants,  71. 
cases  where  they  cannot  be  authorized,  72. 

LEGISLATURE, 

restraints  upon  powers  of,  56. 

power  to  validate  void  sales,  56-62. 

power  to  pass  special  statutes  authorizing  sales,  63  '2. 

LEVY, 

sale  without,  26. 

LOSS  OF  JURISDICTION, 
by  abolishing  the  court,  7. 
by  adjournment  of  the  term,  7. 
by  grant  of  administration,  7. 
by  final  distribution  of  estate,  7. 
by  lapse  of  time  in  which  court  may  act,  7. 

M. 

MINORS, 

special  statutes  authorizing  sales  of  lands  of,  66. 

MORTGAGE, 

reforming  after  foreclosure  sale,  55. 

N. 

NON-RESIDENTS, 

judgments  against,  Avhen  void,  3. 

NOTICE  OF  APPLICATION  TO  SELL. 

absence  of,  not  fatal  in  some  states,  15. 

absence  of,  is  generally  fatal,  16. 

cannot  be  waived  by  a  minor,  17. 

cannot  be  waived  by  a  guardian,  17. 

must  be  given  as  prescribed  by  statute,  17, 18. 

defect  in  form  or  mode  of  service,  18. 

must  be  given  for  the  time  prescribed  by  law,  19. 

NOTICE  OF  SALE, 

absence  of  and  defects  in,  28. 

o. 

OATH, 

failure  of  administrator  to  take,  before  selling,  22. 

174 


INDEX. 

ORDERS  OF  SALE, 

when  unnecessai-y,  9,  20. 

nature  of  proceedings  to  obtain,  10. 

who  may  petition  for,  10. 

lands  not  embraced  in,  9. 

describing  lands  in,  11,  20. 

effect  of,  as  adjudications,  20. 

are  void  if  granted  without  a  petition,  11. 

are  void  if  granted  on  insufficient  petition,  11. 

cannot  be  collaterally  attacked  for  error,  14,  20. 

are  void  if  granted  without  proper  citation,  1719. 

contents  of,  20. 

conclusive  as  adjudications,  20. 

to  be  set  forth  or  recited  in  deeds,  46. 

P. 

PARLIAMENT, 

supreme  authority  of,  64. 
PARTITION, 

constitutionally  of  general  and  special  laws  authorizing,  71. 
PERSONAL  PROPERTY, 

sale  of  without  leave  of  court,  9. 

deficiency  of,  essential  to  authorize  sale  of  realty,  11. 

must  be  present  at  the  sale,  31. 

PETITIONS  FOR  ORDERS  OF  SALE, 

must  be  presented  by  proper  person,  10. 

order  without  is  void,  11. 

order  on  insufficient,  is  void,  11. 

what  should  state,  11. 

verification,  omission  of,  11. 

statutory  provisions  concerning,  12. 

liberally  construed,  13. 

may  refer  to  other  papers  on  file,  13. 

reference  to  other  papers,  how  may  be  made,  13. 

need  not  be  true,  14. 

proceedings  on,  said  to  be  in  rem,  15. 

proceedings  on,  said  to  be  in  personam,  16. 

notice  of,  must  be  given,  17. 

notice  of,  must  be  given  in  mode  prescribed,  18. 

notice  of,  must  be  given  for  the  time  prescribed,  19. 
PLACE  OF  SiLE, 

effect  of  sale  at  another  place,  31. 

POWERS  OF  SALE  IN  WILLS, 

who  may  execute,  9. 

PRESUMPTIONS, 

of  jurisdiction,  4,  8. 

of  confirmation  of  sales,  43. 

that  officer  did  his  duty,  8. 

that  paper  not  found  among  the  flies  Is  lost,  8. 
PRIVATE  SALES, 

when  void,  H2. 

PRORATE  COURTS, 

Instance  of  want  of  jurisdiction,  4. 

jurisdiction  of,  not  presumed,  4.  ' 

flndifigs  of  jurisdiction,  effect  of,  4. 

175  (13) 


INDEX. 

PKOBATE  COURTS— Continued. 

how  may  acquire  jurisdiction  over  persons,  5. 

loss  of  jurisdiction  to  proceed,  7. 

presumptions  concerning  jurisdiction  of,  8, 

necessity  of  lieeping  up  jurisdictional  inquiries  concerning,  9. 

PROBATE  PROCEEDINGS, 

are  void  where  there  is  no  jurisdiction  over  subject-matter,  4. 

have  no  effect  beyond  the  state,  i. 

are  void,  if  supposed  decedent  is  living,  4. 

are  void,  if  taljen  in  the  wrong  county,  4. 

are  void,  unless  jurisdiction  appears,  4. 

when  protected  from  collateral  assault,  4. 

jurisdiction  over  persons,  5. 

presumption  of  jurisdiction,  8. 

must  be  based  on  sufficient  petition,  11-13. 

said  to  be  in  rem,  15, 

said  not  to  be  inrem,  16. 

notice  to  persons  in  interest  must  be  given,  16. 

must  be  confirmed,  43. 

PROBATE  SALES, 

are  void  if  there  was  no  valid  grant  of  administration,  2,  7. 

are  void  if  the  estate  is  not  subject  to  the  probate  act,  4. 

are  void  if  the  court  had  no  jurisdiction  of  the  subject-matter,  4. 

are  void  if  made  under  order  of  court  of  another  state,  4. 

are  void  if  the  supposed  decedent  is  living,  4. 

are  void  if  not  authorized  by  the  court,  9, 

are  void  if  petitioned  for,  by  person  not  authorized  to  petition,  10. 

are  void  if  there  was  no  petition  for,  11. 

are  void  if  the  petition  was  insufficient,  11. 

said  to  be  in  rem,  1.5. 

void  for  want  of  notice  to  heirs  of  application  for  order  of  sale,  16-19. 

void  for  failure  of  administrator  to  take  oath  before,  22. 

void  for  failure  of  administrator  to  give  sale  bond,  22. 

void  for  want  of  appraisement,  27. 

void  for  want  of  notice  of  sale.  28. 

by  whom  may  be  made,  29. 

made  at  an  improper  time,  30. 

made  at  an  improper  place,  31. 

made  in  private,  32. 

made  to  person  not  allowed  to  bid,  38. 

made  for  too  great  a  sum,  34. 

of  property  not  subject  to  sale  is  void,  35. 

of  property  not  ordered  to  be  sold,  is  void,  .35. 

of  property  in  adverse  possession,  38. 

made  en  masse,  39. 

effect  of  fraudulent  practices,  40. 

effect  of  secret  frauds,  41. 

effect  of  misappropriation  of  proceeds  of  sale,  41. 

effect  of  confirmation  without  notice,  42. 

necessity  of  confirmation,  43. 

presumption  of  confirmation,  43. 

right  of  purchaser  to  subrogation,  51-53. 

statutes  validating  invalid,  56-62. 

PROCEEDS  OF  SALE, 

p     chaser  not  bound  to  see  to  proper  application  of,  41,  70. 

17G 


INDEX. 

PURCHASERS, 

who  disqualified  from  being,  33. 

fraudulent  practices  by,  40. 

not  affected  by  secret  frauds,  41. 

not  bound  to  see  to  application  of  proceeds  of  sale,  41. 

at  void  sales,  need  not  pay  their  bids,  4S. 

cannot  resist  action  for  bid  because  of  failure  to  title,  48. 

right  to  recover  money  paid,  4'.t. 

right  to  urge  estoppel  arising  from  ratification,  50. 

right  to  subrogation  denied,  51. 

right  to  subrogation  sustained,  52,  53. 

right  to  hold  lands  till  purchase  money  is  refunded,  5a. 

right  to  accounting  on  equitable  principles,  53. 

fraud  of,  destroys  right  to  subrogation,  54. 

R. 

RATIFICATION, 

of  sales  never  approved  by  court,  43. 

of  void  sales,  50. 

of  void  sales  by  receiving  surplus  proceeds,  50. 

of  void  sales  by  acquiescence,  50. 

of  void  sales  by  minors,  50. 

of  void  sales  by  curative  acts,  56,62. 

REFORMING, 

sheriffs'  deeds,  55. 
REMAINDER, 

statute  seeking  to  validate  void  sale  of,  58. 

authorizing  sale  of,  without  cause  or  consent  of  owner,  71. 

RETROSPECTIVE  LAWS, 
constitutionality  of,  54. 

RETURN, 

defects,  variances  or  omissions  in,  41. 

RETURN  OF  SALES, 

confirmation  cures  want  of  verification,  44. 

RETURN  DAY, 
levy  after,  30. 
sale  after,  30. 

8. 

SALE, 

of  pioperty  not  subject  to,  -35. 

of  different  or  les.s  interest  than  that  held  by  defendant,  36. 

of  undesignated  part,  37. 

subject  to  liens  which  do  not  txist,  36. 

SECURITY, 

failure  to  give  additional,  effect  of,  22. 

SHERIFF, 

executing  writ  directed  to  another,  29. 
executing  writ  to  which  he  is  party,  29. 

SUBROGATION, 

purchaser's  right  to,  denied,  61. 
purchaser's  right  to,  sustained,  52,  53. 

177 


INDEX. 

SPECIAL  STATUTES, 

confirming  invalid  sales  and  proceedings,  66-62. 

for  sale  of  lands  or  minors  prohibited  in  some  states,  64. 

for  compulsory  sale  of  lands,  objections  to,  65. 

See  Curative  Statutes. 

See  CONSTITDTIONA.LITY. 

See  Legislative  Sales. 

T. 

TIME, 

when  sale  may  be  made,  aO. 
when  execution  may  issue,  24. 

TRUSTEES, 

special  acts  authorizing  sales  by,  68. 
purchase  by,  at  their  own  sales,  33. 
execution  sales  against,  when  void,  35,  note. 

V. 

VARIANCE, 

between  judgment  and  execution,  25. 

VERIFICATION, 

of  petition  for  order  of  sale,  omission  of,  11. 

VESTED  RIGHTS, 

not  to  be  divested  by  legislation,  56. 
what  are,  61. 

VOID  JUDGMENTS, 

sale  under,  effect  of,  2,  and  note. 

VOID  SALES, 

classified  and  described,  1. 

are  those  based  on  void  judgments  or  orders,  2. 

are  those  made  in  probate  without  valid  grant  of  administration,  2, 

are  those  made  where  court  had  no  jurisciction,  3,  4. 

are  those  made  without  authority  from  court,  9. 

not  validated  by  order  of  confirmation,  44. 

ratification  of,  50. 

right  of  purchasers  at,  to  resist  payment  of  bid,  48.  ^ 

right  of  purchaser  at,  to  recover  money  paid,  49. 

right  of  purchaser  at,  to  subrogation,  51-53. 

statutes  validating,  56-62. 

See  Curative  Statutes. 

See  Execution  Sales. 

See  Judicial  Sales. 

See  Legislative  Sales. 

See  Probate  Sales. 

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